Claim brought by current and former Binghamton University professors seeking damages for employment discrimination and multiple other violations of the Human Rights Law, as well as for violations of the ADA, breach of contract and constructive termination, dismissed after trial.
|Claimant(s):||R. KEVIN LACEY, TAYSEER GOMAA and EID MOHAMED|
|Claimant short name:||LACEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant.|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||MAINES FIRM, PLLC
BY: Russell E. Maines, Esq., of counsel
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Peter DeLucia, Assistant Attorney General
Mark Sweeney, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 1, 2019|
|See also (multicaptioned case)|
Claimant R. Kevin Lacey (Lacey) is a white, male, Christian American. Claimant Tayseer Gomaa (Gomaa) is an Egyptian female Muslim. Claimant Eid Mohamed (Mohamed) is an Egyptian male Muslim. Claimants bring this claim alleging that they were each subjected to employment discrimination in violation of the New York State Human Rights Law (Executive Law §§ 290-297) on the basis of national origin and religion, as well as retaliatory conduct also in violation of the Executive Law during the course of their employment at the State University of New York (SUNY) at Binghamton (also known as Binghamton University, hereinafter BU).(2) The claim also alleges disability discrimination against Lacey and Gomaa in violation of the Human Rights Law, and breach of contract as to Gomaa and Mohamed.(3) No notice of intention to file a claim was ever served upon defendant. The claim was filed on October 23, 2013, and was served on defendant on November 13, 2013. A timely answer was filed and served, which asserted several affirmative defenses, including that the Court lacks jurisdiction over the claim, as it accrued more than 90 days prior to the date of either filing or service. A bifurcated trial on the sole issue of liability(4) was held in the Binghamton District on September 30 - October 2, 2019.
At trial, Lacey testified that he has been a professor of Arabic employed in the department of Classic and Near Eastern Studies (CNES) in the Harpur College of Arts and Sciences at BU since 1990. He is still employed in that position. He explained that there are two tracks in CNES: Classical studies of Greek and Latin, and Arabic and Near Eastern studies. Lacey was the Chair of the CNES department from 2000 through 2008 (each term is three years). Andrew "Randy" Scholtz became Chair of the department from January 2009 through 2014, and was elected again as Chair starting in 2018. Scholtz is a professor of Classics, the other "track" in CNES. Lacey said that the responsibilities of the chair include reporting to the Dean and overseeing the department and faculty.
Lacey said that he sent a letter (the Letter)(5) to then-SUNY Chancellor Nancy Zimpher in February 2010 in response to her request to the SUNY community for input on goals and directions for the university system.(6) Scholtz came to Lacey's office after he learned about the Letter. Lacey said Scholtz was angry, and that Scholtz said Dean Donald Nieman(7) was angry as well. Scholtz eventually wrote a rebuttal(8) to Lacey's Letter in which he noted that Lacey was essentially proposing closure of the Classics program and shifting those resources to programs such as Arabic. Lacey stated that after he sent the Letter, he was subjected to a pattern of retaliation by Scholtz and various deans.
Lacey said that at the time he wrote the Letter, enrollment in the Arabic program was "taking off exponentially."(9) Lacey attributed this increase to his own hard work, "charm" and "charisma."(10) Lacey said he repeatedly advised BU's administration of the increase in enrollment (which was peaking in 2009 and 2010), as well as funding cuts to the Arabic program. Lacey said that during this time period, he and Gomaa were the only people teaching Arabic. Gomaa was a lecturer, which was a non-tenure-track position. As enrollment increased, the program's work load became much more demanding, according to Lacey. He said that a reasonable class size in beginning Arabic might be 15 students, and at one point there were 55 students in that class (which he managed to teach with Gomaa's assistance). Lacey said that he was advised by Dean Nieman that there was not much that could be done due to a university-wide shortage of resources. Eventually, another lecturer was hired, and in 2011 Mohamed was hired as a Visiting Professor. Enrollment leveled out, and then underwent what Lacey described as a "remarkable drop" around 2014. Lacey had no explanation for the sudden decrease in enrollment, but stated that at least two of his classes had been canceled due to lack of interest/enrollment.
Lacey said that due to his increased workload, he began suffering extreme fatigue and asked for a reasonable accommodation in 2010, consisting of a reduction of his teaching load. He first spoke to Dean Nieman, who referred him to the Affirmative Action and Accommodation Officer Valerie Hampton. Lacey said he had at least two discussions with her in the fall of 2010, and wanted to know why his request was not being addressed. He gave her letters dated April 7, 2011(11) and April 21, 2011,(12) but said that she did not find the letters from his physician adequate and told him she needed an actual diagnosis. No accommodation was made in 2010 or 2011. Lacey had a heart attack in January 2012. By August 2012 he received a letter stating that BU would grant him an accommodation, and his course load was reduced in the fall of 2012.
Lacey testified that Gomaa was under his supervision. She was a lecturer, which is a non-tenure-track position. Lacey said he was concerned about her well-being, because she was constantly "badgered" by Scholtz during department meetings. He said that Scholtz perpetually questioned Gomaa's syllabi, course-planning and teaching, and that "virtually anything she proposed was met with resistance." He said that Scholtz questioned why Gomaa planned to teach Egyptian-spoken Arabic, as opposed to standard Arabic. Lacey believed this treatment was because Gomaa was Egyptian and Muslim. Gomaa left in 2013, having been offered a one-year contract for the following academic year, when she had previously had a succession of three-year contracts.(13) Lacey said that in a meeting in 2013, Dean Anna Addonisio and Dean Wayne Jones stated that the University was moving toward eliminating positions that were not tenure-track. Lacey said he asked whether this was going to be done throughout the University, and was told that it would be a University policy. Lacey said that at this meeting Addonisio and Jones told him that they would have to eliminate one non-tenure-track position in the CNES department, and told him he could decide whether that would be Gomaa or Mohamed.
Lacey next testified that Mary Youssef was hired as a Professor of Arabic in Fall 2012. Lacey stated that he supported her hiring, testimony he subsequently contradicted. Scholtz sent Lacey an email with an allegation that Lacey had inappropriately gone into one of Youssef's classes, taken quizzes from her, and criticized them in front of the students. Lacey acknowledged that he had attended a class she was teaching, and said that he had been assigned by Scholtz to mentor her. He stated that mentoring responsibilities included going into classes and sharing observations with the person being mentored. He said that he did not criticize her, and at the end of the class simply stated "good." Lacey did not respond to Scholtz' email, but then received an email from Dean Jones on the same subject that was "more accusatory." He did respond to Jones' email.(14)
Lacey briefly discussed Mohamed's claims of discrimination. Mohamed was about three weeks late in arriving at BU for his first semester of teaching in Fall 2011 due to visa problems. Lacey and Gomaa covered his teaching responsibilities during that time. Lacey said that Mohamed called him to advise him of the problem, and Lacey thereafter advised Scholtz regarding the situation. Lacey indicated that Scholtz stated that Mohamed's career and life would be "ruined." Lacey sent a letter of support to try to speed up the visa process.
On cross-examination, Lacey acknowledged that he is still an Associate Professor in Arabic at BU. The Arabic program has two other tenure-track professors in addition to him. Lacey said that his teaching schedule in 2010 required him to teach three courses in the fall and three courses in the spring. This would be comprised of 3 hours per course per week, with 15 weeks of instruction. He also would conduct "office hours" where students could meet with him for a minimum of two hours per week. He also taught some independent study courses. Between 2010 and 2013 he did not teach any summer classes. He went on sabbatical during the 2013-2014 academic year.
Lacey said that prior to writing the Letter to Zimpher, he had indicated his concerns about overcrowding of courses and underfunding of the Arabic program to various BU Deans by means of email.
In Fall 2010, when he first requested an accommodation due to health issues, he already had been diagnosed with Irritable Bowel Syndrome (IBS) for a lengthy time.
Lacey was part of the search committee for a tenure-track professor in 2012. Mohamed was Lacey's first choice for the position. Lacey believed that Mohamed's interview process had been "truncated," although he was not specific. Youssef had not finished her dissertation when she was interviewed in 2012, whereas Mohamed had already received his doctorate and had been published. Lacey acknowledged that Youssef was an Egyptian national.
Gomaa testified that she became a lecturer in the Arabic program at BU in 2001. She had four three-year contracts between 2001 and 2013. She left in 2013 after declining the offer of a one-year contract. She stated that Scholtz told her in 2012 there was enough money in the departmental budget for her to get another three-year contract. She said that if she was not hired for a three-year contract, she felt she needed to find another job. She was worried about her health problems, which she described as anxiety, stress and depression. She claimed this was caused by the way she was treated at BU, by Scholtz in particular.
Gomaa initially testified that her health problems were emotional, not physical. Under repeated questioning from counsel, she eventually stated that she collapsed in her office in February 2012 the day after she discovered that her name was not listed as a teacher in the schedule of courses offered for fall 2013.(15) She was taken to the hospital where she was diagnosed with angina and released.
Gomaa stated that Scholtz' alleged mistreatment of her included telling her that the Arabic program enrollment increase was not due to her efforts, but rather was because of the impact of the events of September 11, 2001. BU administration had advised that if enrollment did not increase, the Arabic program would be discontinued. She said that she and Lacey devised a strategy to encourage native Arabic speakers to take higher level classes rather than being required to take entry level courses. As enrollment increased, they started to need assistance. However, she said that every time she spoke to Scholtz he insulted and humiliated her. She said he told her not to speak in departmental meetings because she was not in a tenure-track position.
Gomaa described a situation that occurred in 2010 when Scholtz followed her into her office, closed the door and sat down. She said he "exploded," and told her he had an encounter with one of the Arabic students and "lost it." He told her the student was expressing his frustration to the department secretary about the lack of Arabic courses, so he confronted the student. Gomaa said she was "scared, in shock" and did not know what to do. She told Scholtz she would contact the student to find out what happened. The student came to her and said that Scholtz had told him he (Scholtz) was going to report the student to the University Police because he threatened the secretary. Scholtz and the student met in Gomaa's office, and they apologized to each other.
Gomaa further complained that she was excluded from the tenure-track search committee which was formed to hire another Arabist in 2012, despite the fact that none of the members of the committee were Arabists.(16) Gomaa said Scholtz told her to be present for all the candidates' presentations, and to find students to attend luncheons with the candidates. However, she was never asked for her opinion on the candidates. Youssef was eventually hired, but Gomaa thought Mohamed was more qualified. Gomaa acknowledged that Youssef is Egyptian.
Gomaa said she complained to Nieman in 2009 about Scholtz' behavior. She said she approached him because her husband died suddenly and she needed to know if her contract would be renewed.
Gomaa testified she is Muslim. Her counsel asked if she was aware that she alleged in the claim that she was discriminated against because of her religion, and after a great deal of hesitation she replied "partially." He asked again, and she said "I guess . . . I don't know why [Scholtz] was treating me this way," but that the two people hired after her were Christian.
On cross-examination, Gomaa was shown a copy of an appointment letter dated May 25, 2004,(17) which renewed her appointment for one year. She acknowledged she signed it, signifying her acceptance of it. The agreement was subsequently amended to a three-year appointment in November 2004.(18) The appointment letter indicated that she was to teach three courses per semester. She said that at one point she was asked to teach an extra course and she refused.
Gomaa also said that when she had sciatica and each of her courses was in a different building on campus, she asked the administration to place at least two of her classes in the same building, and this accommodation was granted. After she collapsed in February 2012, she took about a week off and then returned to teaching. In November, 2012, she was diagnosed with anxiety and stress, and took medical leave for three months. Because of this she did not teach in the 2013 spring semester. She was offered a one-year contract for the academic year 2013-2014, and refused it.
With regard to the incident between Scholtz and the Arabic student, she said it took place at 1:00 p.m., when other people were in the building. She said Scholtz did not touch her, and he was not yelling at her. He was angry, but she unequivocally stated that his anger was not directed at her.
Mohamed testified that he arrived about three weeks late to his first semester at BU because of a delay in the renewal of his visa. He met with Nieman when he arrived, and said that he told Nieman that Scholtz had told him his career and life were ruined when he was not able to arrive before classes started. Mohamed said Nieman made no comment and welcomed him to BU. He started teaching his courses and there were no repercussions due to his late arrival.
Mohamed said that at the first departmental meeting he attended, Scholtz stated that the events of September 11, 2001 were a driving factor in the increasing enrollment in the Arabic program. Mohamed disagreed. Mohamed proposed teaching a course on the Arab Spring movement. He said that Lacey was excited about it, but that Scholtz advised that Mohamed was at BU to teach the Arabic language. Nevertheless, Mohamed did teach the course.
Mohamed said he wrote a great deal about the perception of Muslims in the United States, and "could feel" that Scholtz was "Islamophobic." Mohamed said that Scholtz' attitude prevented Mohamed from receiving equitable treatment. When asked about specific incidents, Mohamed's first response was that he was "referring to the unspoken words" and "body language." He complained that the Arabist instructors were not shown support. When asked by his counsel whether there was anything actually spoken that led to his departure, he said that during his interview for the tenure-track position Scholtz asked him how he felt about the Muslim Brotherhood. Mohamed explained to Scholtz that the Muslim Brotherhood is an Islamic group banned in some countries and is a part of the government in other countries, such as Egypt. Mohamed apparently was offended by the use of the word "feel." Mohamed insisted that although he wrote about the Muslim Brotherhood, those writings occurred after Scholtz questioned him about it.
Mohamed was also unhappy that the dinner meeting that was scheduled during his interview process for the tenure-track position was rescheduled "at midnight" to a date when his son was going to have surgery. Because of the surgery, the dinner meeting did not occur. Mohamed believed he was more qualified than Youssef, who was eventually hired for the position, because he had completed his dissertation and had been published, whereas Youssef had not yet completed her dissertation. Mohamed spoke at some length about his qualifications for the position, and believed he should have been able to have a dinner meeting because he was an "internal" candidate. He stated it was "very clear who had better qualifications." Mohamed said that the cancellation of the dinner meeting was the main reason for his resignation, along with not being hired for the tenure-track position. He felt that was "a huge insult by the University" and the search committee. Mohamed was also bitter that Lacey did not chair the search committee.
Mohamed said that his stress over the "hostile environment" and "what happened to" Lacey and Gomaa resulted in him having panic attacks and insomnia. He resigned in August 2013 despite having a family, no job prospects and one year remaining on his contract. He said he had none of these health problems prior to coming to BU, and did not smoke or drink.
On cross-examination, Mohamed acknowledged that BU did not terminate his contract when he arrived late in 2011 due to his visa problems. He admitted that he was not fired in 2013, but instead resigned. Mohamed took the fall 2012 semester off to work at the Brookings Institute, and resigned his job at BU in the summer of 2013, so ended up teaching only three semesters total at BU.
Mohamed was asked whether Scholtz could have been asking about current events when inquiring about the Muslim Brotherhood. Mohamed acknowledged that the president of Egypt at that time was a member of the Brotherhood, but said that Scholtz should not have asked about his "feelings" and again emphasized that his writings about the Brotherhood occurred after the exchange between the two. Mohamed was shown an article he wrote about the Muslim Brotherhood which was published on January 11, 2013. Mohamed's interview meeting with Scholtz occurred in February 2013. On redirect, Mohamed insisted that Scholtz' phrasing made it "a political question with religious intonations."
Claimants rested their cases at the close of Mohamed's testimony. Defendant moved to dismiss on various grounds which will be discussed infra. The Court reserved decision on the motion.
Donald Nieman, currently Provost and Executive Vice President for Academic Affairs, testified for defendant. Nieman was Dean of Harpur College of Arts and Sciences from 2008 to 2012. In that capacity, he would meet with the departmental chairs to discuss goals, objectives and challenges, and would initiate the process to elect a new chair when a chairperson's term expired.
Nieman said that in his capacity as Dean he would interview candidates for tenure-track positions, but that the hiring decisions were made at the departmental level. He would "almost universally accept" those recommendations.
Nieman testified that BU was in serious financial difficulty after the 2008 financial crisis, having lost about 30% of its State support. He said that before he even became Dean he was informed there would be a $300,000 budget cut in the fall of 2008. He said that the College's budget was cut somewhere between $4 and $5 million in the years 2008 through 2011, out of an annual budget of $40 million. Eighty percent of the State's funding was tied up in personnel costs. He said he put a hold on all hiring of tenured and tenure-track faculty across the College. He said that at the time there were about 300 to 350 tenured and tenure-track faculty in the College. There were some exceptions to the hiring freeze, such as when a department could obtain external funding for a hire. He said that he "looked at pretty much everything in the College" when trying to make the budget cuts, including teaching assistants, adjunct faculty and staffing consolidations.
Nieman acknowledged that there was a significant increase in enrollment in Arabic studies starting in the 2009-2010 academic year. Nieman tried to accommodate that, authorizing an adjunct professor for a class or two. In the fall of 2011, he authorized the Visiting Assistant Professor position occupied by Mohamed in order to better serve the students. He said that he never made any move to eliminate Arabic studies, and could not imagine that he would have conveyed that the Arabic studies program was not important because he did not believe that.
In 2011-2012, the budget situation was starting to improve so he authorized a few new tenure-track positions, including one in Arabic studies. Because the CNES department only had three tenure-track members, he had to assemble a search committee partly formed from people outside the department. He said that in smaller departments this happens all the time. The search committee hired Mary Youssef.
Nieman said he got a call on Labor Day weekend in 2011 about Mohamed's visa situation. He said he spoke to (then) Provost Swain about it, contacted U.S. Senator Schumer's office for assistance, spoke to people on the BU staff familiar with visa situations, and ended up retaining counsel familiar with immigration issues in order to assist Mohamed in getting to campus as soon as possible. Nieman met with Mohamed after he arrived to welcome him on campus. He said that Mohamed was very friendly and happy to have arrived.
Nieman was asked whether he had any role in mediating any issues regarding the work environment for claimants. Nieman said he remembered a few meetings but could not recall what was discussed. He noted that any disability accommodations would not have been within the purview of the Dean, but would rather have been addressed by the Accommodation Officer, Valerie Hampton.
Nieman said he never told Gomaa not to speak, and certainly did not recall ever witnessing Scholtz telling her to stop speaking.
On cross-examination, Nieman said that Lacey came to him in 2011-2012 and expressed concern that there were insufficient resources for the Arabic program. He said that Lacey probably expressed that he and Scholtz had "friction" and that the people in CNES did not get along as well as they should have. However, he said that Scholtz was consistently very supportive of trying to provide adequate teaching resources for the Arabic program. Nieman thought he recalled receiving complaints from students about the lack of resources in Arabic studies in the 2010-2011 academic year.
Nieman did not recall any problems between Scholtz and Gomaa. Nieman said that in his welcoming meeting Mohamed expressed appreciation for Scholtz' assistance with the visa problem. Nieman knew that Mohamed left BU after Nieman became Provost. He did not speak with Mohamed regarding his reasons, and did not have an in-depth conversation with the interim Dean about why Mohamed resigned and Gomaa declined to sign a new contract. Nieman said that Scholtz did not have a reputation for a volatile temper, and did not have a reputation for discriminating against people based on their religion, ethnicity or appearance.
Nieman did recall Lacey telling him that he needed an accommodation, although Nieman did not recall any specific issues. Nieman told Lacey to see Valerie Hampton. He learned that at some point Lacey was complaining that he was not receiving an accommodation, so Nieman contacted Hampton to see if Lacey had contacted her. At that point Lacey apparently had not done so. Nieman was aware that Lacey had a heart attack at some point.
Valerie Hampton also testified. She explained the process involved in obtaining a reasonable accommodation, indicating that she would need medical documentation of a disabling condition with as much specificity as possible regarding how that condition would impact the ability of the employee to do their job, along with a description of what the job actually requires and information from the employee about what they needed. Hampton received a letter from Lacey's doctor dated April 7, 2011(19) which stated that Lacey had a chronic (unspecified) medical condition that impaired his ability to work long hours, and requested that he be given reasonable accommodations in order to reduce the requirement that he work long hours. Hampton said this letter was not sufficient in terms of a diagnosis so she requested another letter. She received another letter dated April 21, 2011(20) which stated in pertinent part: "Mr. Lacey has [IBS] with significant symptomatology . . . which frequently cause[s] sleep disruption, headaches, and fatigue. Despite these, he is able to function as a full time professor, at an average of at least a 40 hour work week." She said that her discussions with Lacey about a potential accommodation were never concluded at that time, because nothing presented to Lacey was acceptable other than an adjustment to his course load. She did not recall what options were presented to him.
She was aware that Lacey subsequently had a heart attack, and he again requested an accommodation. The CNES department was moving from one building to another, and Lacey did not want to move but instead wanted to keep his current office. She said that part of the basis for his request was that he did not want to be in contact with the other employees in his department. She said there was really no difference between his old office and the prospective new one. She offered to have someone move his belongings and books from the old office to the new one. She never heard whether he did change offices. She said that he was given an accommodation to reduce his course load, but that the CNES department dealt with that issue.
Hampton said she was familiar with Gomaa, who came to see Hampton one time to express "some concerns or uneasiness" about "things going on in the department." Hampton said Gomaa's complaints were "broad and vague" and that Gomaa was "unwilling to be specific about what she felt was discrimination." Hampton never got enough information to be able to take any action, and told Gomaa she should come back if she wanted to give more information.
On cross-examination, Hampton said that she thought she spoke to Scholtz to learn about Lacey's course load and job responsibilities. She was shown a purported memo from Lacey dated October 13, 2010(21) requesting an accommodation at rather wordy length, and said that she may have received it, but that it would have been date-stamped as received in her department (it was not) and that the referenced doctor's letter (no such letter was attached to the exhibit) would also have been date-stamped. She noted that there is a form for requesting a reasonable accommodation which is available on the BU website, as well as a reference to it in the BU handbook. When shown an email from Lacey to Scholtz dated April 4, 2011(22) regarding Lacey's request for an accommodation, which she was copied on and which said she had not responded to Lacey's request, Hampton agreed that if she had responded to Lacey's initial inquiry she would have so advised when she received the email. She recalled speaking to Scholtz "a few times," but did not have a specific recollection regarding the conversations.
Hampton did not recall whether she had learned that Mohamed made a complaint about a hostile work environment. She did not recall hearing from another staff member that Scholtz was involved in creating a hostile work environment, nor that Gomaa had ended up in the hospital due to "something going on at CNES." Hampton indicated that there is an appeals process regarding accommodations if someone was "not satisfied with [her] work."
Nancy Um, a full professor and Assistant Dean for Faculty Development and Inclusion at BU, also testified. Um was on the search committee for the tenure-track position in the Arabic program in 2012. She noted that her PhD topic was "Art, Architecture and Urbanism of the Islamic World." She said she had been on 15 to 20 search committees and described the procedure. She attended Youssef's teaching demonstration, and said that whoever was able to attend the various demonstrations and talks would report back to the rest of the search committee. She attended all the public lectures by the candidates. The candidates normally would meet with various interest groups, have lunch with students and a Dean, and would take meals with the search committee and faculty members. She did not recall if she attended a meal with Youssef, but did not think she attended any meals with Mohamed.
Um said that search committees had a different social interaction with internal candidates, because there is already familiarity with the person. She did not recall specific discussions about Mohamed, but said she would be very surprised if religion was discussed. She noted that there is a "dialect" requirement which is regionally specific, so that whatever Arabic dialect was spoken was likely to be the area that person was from. Um said she was proficient in the Yemeni dialect of Arabic. Um was strongly in favor of Youssef's hiring based upon her teaching demonstration and interaction with the students. She did not recall how she ranked the other candidates.
On cross-examination, Um said that it is debated in academia whether a candidate's dinner is part of the interview process. She believes that the dinner events generally disadvantage candidates rather than helping them. She said she was told afterward that Mohamed objected to not having a dinner meeting. She also said that Mohamed's publications were from a commercial press, and that some academicians believe that a university press is of more value than a commercial press in the academic realm.
Scholtz also testified. He is an Associate Professor of Classics in CNES, having started in the fall of 2000. He has a PhD from Yale University in Classical Studies, and had also taught at Yale and Wabash College. He is currently the Chair of CNES, with his most recent term starting in fall of 2018. He was also Chair of the department for six years starting in the fall of 2009. One of the roles of the Chair is to make sure there are personnel to teach courses. Scholtz said the budget was very limited when he became Chair in 2009. When he became Chair he felt that the number of Arabist instructional lines should be increased due to the strong enrollment in Arabic studies at that time. He made the case to Dean Nieman that there should be a hire because of the substantial need. Ordinarily a tenure-track position would be sought because that is a long-term investment which creates an atmosphere of commitment. However, because of the financial crisis it was unclear whether a permanent position was a possibility. So, he first got funding for an adjunct position, filled by a person named Talaa Akti, and then a non-tenure-track but high-ranking Visiting Assistant Professor position, which was filled by Mohamed. Eventually in 2012 permission was given for a tenure-track hire.
Scholtz said he became aware of the Letter from Lacey to Zimpher at some point, and wrote an email to a number of people in response. He believed it was important for him to respond because the Letter was implicitly about "a drag" that the Classics side of CNES was creating with regard to the potential growth on the Arabic side. He wanted to address the implied suggestion that Classics needed to be reevaluated in terms of priorities at BU. He spoke to Lacey about the Letter, and said that his recollection of the conversation was to clarify the meaning of the Letter and to try to create a more synergistic working environment with better chemistry. His impression was that overall Lacey's response was positive.
Scholtz said that he recalled that at some point after 2009 he was invited to attend a meeting in Lacey's office to discuss his oversight of the Arabic curriculum. Lacey told him that Scholtz did not know enough about the Arabic program to be qualified to supervise the curriculum. Scholtz did not specifically recall his response, but was certain he did not threaten Lacey in any manner.
Scholtz said there was clearly tension between himself and the Arabist instructors. He said the tension had nothing to do with national origin, race or religion. Rather, from his perspective it was their perception that Scholtz was not doing enough to expedite the reappointment of Gomaa to an instructor position. He said that at times it was difficult to articulate what the issue was, but that sometimes there was "a sense of icy stares and hostile body language." He said his perception that they were unfriendly was obviously very subjective.
Scholtz recalled the incident where the Arabic student was yelling at the departmental secretary. He said the student was shouting and kicking the door of the secretary's office, and Scholtz told him to shut up (using a profanity). Scholtz said the student "reset," stopped yelling, and eventually left. Scholtz said he met with Gomaa about it, telling her he felt that what he said to the student was "over the top" and asked her to help set up a meeting with the student. He did not recall his tone of voice at the time, but it could have been emotional. He confirmed her account that he did not threaten her or use violence. Gomaa helped him set up a meeting with the student, and Scholtz and the student each apologized to the other. Scholtz was aware that Gomaa collapsed in her office in the spring 2012 semester, and that she was on medical leave at some point.
Scholtz said he never tried to diminish or eliminate the Arabic program. He never engaged in harassment of the Arabic professors/instructors. He said the only time he ever told Gomaa to stop speaking was when she wanted to discuss her reappointment during a departmental meeting, because he thought that was not the appropriate time given that she was not in a tenure-track position. In his experience, employment contracts with particular individuals were not a normal subject of discussion at departmental meetings.
Scholtz learned from Lacey at some point that Lacey was seeking an accommodation. In response, Scholtz contacted Hampton to find out the form the accommodation would take, in order to comply with it.(23) Scholtz became aware that Lacey had a heart attack in 2012. In response to that event, Scholtz spoke to the current Dean and reduced Lacey's course load. He said he did not retaliate in any way because of having to make the accommodation.
Scholtz did not recall how he became aware of Mohamed's visa problems in 2011, but said it caused him "immense concern." In response, he contacted Dean Nieman and Mohamed's PhD-granting institution (George Washington University) to see if they could help. Scholtz did not want to tell Mohamed his contract could be canceled "because that would panic anyone" but said he needed to convey to Mohamed that at a certain point he had to be on campus "for the contract to initiate or words to that effect." He did not recall telling Mohamed that his life would be ruined. Scholtz emphasized that he was trying to help Mohamed, and that Mohamed eventually made it to campus three or four weeks into the semester.
During Mohamed's application process for the tenure-track position in 2012, Scholtz saw Mohamed's teaching demonstration and public talk, and met with him informally one-on-one. Scholtz recalled that they spoke about one of Mohamed's articles, and although he did not remember the title he recalled that the topic was political Islam. Scholtz thought they discussed the election in Egypt and what was occurring in Iran. He said it could be categorized as current events and news issues. Scholtz denied asking Mohamed anything about his religious preferences or beliefs, and did not recall any discussions about the events of September 11, 2001. He also did not think he asked Mohamed anything about his "feelings" about Islamophobia or Muslims in general.
Scholtz said that at some point he became aware that Youssef had job offers from other universities and that if the search committee was interested in making her an offer, it was time-sensitive. He said the substantive interviewing process with all the candidates had concluded at that point. He spoke to his colleagues on the search committee, and also spoke to Dean Nieman regarding how to proceed. He tried to reschedule Mohamed's dinner, but it did not work out because of Mohamed's son's surgery. The committee met and voted, and the vote was four to one(24) to extend an offer to Youssef.
Scholtz said that dinner with a teaching candidate is not a "formal evaluation exercise." From his perspective, the primary purpose is to "pitch the department to the candidate." When asked whether the dinner has any bearing on a candidate's eventual success, he responded that it "mostly" had a bearing on getting the candidate to come to the campus. Scholtz' vote was not influenced by not having a dinner for Mohamed. He said that he heard good things about Youssef's teaching demonstration, and was impressed with her scholarship. By contrast, he found Mohamed's teaching "wooden and mechanical," and did not think his interaction with the students was positive.
He said there was a CNES departmental meeting in the spring of 2013 with a topic of how the members could work better together. He did not use loud or offensive language. He acknowledged that Mohamed's and Gomaa's names did not appear on the teaching schedule for the fall of 2013, and said that was because he did not know who would be teaching which classes in light of the tenure-track hiring. He said it had nothing to do with trying to eliminate their positions, but that he was uncertain about the status of the contracts, particularly in light of the fact that the Dean's office was pursuing the tenure-track hiring and that funding for non-tenure-track positions would be an issue. After that, Gomaa did not sign the new contract offer, and Mohamed resigned his position. Scholtz said he was disappointed.
Scholtz did not know the religious background of the professors hired to replace Gomaa and Mohamed. It was not a question he would ever ask, although sometimes candidates would share the information.
Defendant rested its case at the close of Scholtz' testimony, and renewed its motion to dismiss. The Court again reserved decision. Claimants moved to amend the pleadings to conform to the proof by proposing the addition of two causes of action: a violation of the Americans With Disabilities Act of 1990 (the ADA) with respect to Lacey, and constructive discharge with respect to Gomaa and Mohamed. The Court reserved decision on this motion as well. Claimants' post-trial memorandum expanded on counsel's request and the motion will be discussed infra.
Claimants' first and second causes of action allege discrimination in violation of the Human Rights Law against claimants Gomaa and Mohamed on the basis of their national origin and religion, respectively, and against Lacey because of his support of Gomaa and Mohamed.
To prove a claim of discrimination under the Human Rights Law, a claimant must demonstrate prima facie that "(1) [he or] she is a member of a protected class; (2) [he or] she was qualified to hold the position; (3) [he or] she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 , see also Ferrante v American Lung Assn., 90 NY2d 623, 629 ). "An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be " 'more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation' " (Forrest, 3 NY3d at 306, quoting Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2d Cir 2000]). In the event that a prima facie case is made, "[t]he burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision," and if so rebutted, claimant "must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason" (id. at 305 [internal quotation marks omitted]).
No evidence was submitted at trial to show that any of the claimants in this action suffered any adverse employment action.(25) Gomaa was at the end of the term of her employment contract and declined to sign the new contract that was offered to her. Mohamed had another year to go on his contract, but tendered his resignation. Lacey continues to teach at BU as an Assistant Professor. No action was taken by BU administration toward any of the claimants that could be considered adverse, much less "materially adverse." Without a showing of any adverse employment action, claimants have failed to establish a prima facie case of discrimination under the Human Rights Law. Defendant's motion to dismiss claimants' first and second causes of action is granted as to all claimants.
Claimants' third cause of action alleges retaliation against claimants in violation of the Human Rights Law, also based upon Gomaa's and Mohamed's national origin and/or religion and Lacey's support for them. It is unlawful under the Human Rights Law to retaliate against an employee for opposing discriminatory practices. To establish a prima facie case of retaliation the claimant must show that "(1) [he or] she has engaged in protected activity, (2) [his or] her employer was aware that [he or] she participated in such activity, (3) [he or] she suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest, 3 NY3d at 313). Once again, there was absolutely no indication that even the slightest adverse employment action was taken against any of the claimants. Defendant's motion to dismiss claimants' third cause of action is granted with respect to all claimants.
At trial, Lacey moved to conform the pleadings to the proof to establish a violation of Title I of the ADA (42 USC §§ 12111-12117), arguing that defendant failed to provide him with a reasonable accommodation in the form of a reduction in his course load during 2010 and 2011. CPLR 3025 (c) provides that "[t]he court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just." It is well-settled that leave to amend "should be freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]). "Prejudice is more than the mere exposure of the [party] to greater liability. Rather, there must be some indication that the [party] has been hindered in the preparation of [the party's] case or has been prevented from taking some measure in support of [its] position. The burden of establishing prejudice is on the party opposing the amendment" (Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411  [internal quotation marks and citations omitted]).
As an initial matter, the Court notes that it is unclear whether defendant may be sued in the Court of Claims based upon a violation of Title I (see Montalvo v State of New York, UID No. 2013-049-013 [Ct Cl, Weinstein, J. Mar. 6, 2013], n 1; see also Linen v State of New York, UID No. 2016-015-189 [Ct Cl, Collins, J., Dec. 2, 2016]; Watkins v State of New York, UID No. 2014-032-120 [Ct Cl, Hard, J., July 8, 2014]). Moreover, there may be a question as to whether a claim asserting such a cause of action must be filed and served within the 90-day period of Court of Claims Act §§ 10 (3) or (3-b) or the 6 month period of Court of Claims Act § 10 (4) in order to be timely.(26) However, the Court need not decide either of these issues because the motion to conform with respect to an ADA cause of action must nevertheless be denied as lacking in merit. Lacey admitted that by August 2012, defendant had reduced his course load and thus had provided a reasonable accommodation. Accordingly, his cause of action accrued on August 31, 2012 at the latest. Applying the later six-month time period of Court of Claims Act § 10 (4), a claim alleging a cause of action for violation of the ADA would have to have been filed and served by February 28, 2013.(27) This claim was filed on October 23, 2013 and served on November 13, 2013, and thus the proposed amendment is untimely. Defendant has asserted as an affirmative defense that the claim was not timely filed and/or served and the Court may address this issue sua sponte (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 670-671 [3d Dept 1997]). Accordingly, the Court finds that claimant cannot recover with respect to an ADA cause of action. The proposed amendment is plainly lacking in merit and Lacey's motion to conform the pleadings to the proof to assert such a cause of action is denied.(28)
Even if the proposed cause of action was not untimely, the motion would be denied on the merits. In order to establish a claim for failure to provide a reasonable accommodation, a claimant must establish that "(1) [claimant] is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his [or her] disability; (3) with reasonable accommodation, [claimant] could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations" (McMillan v City of New York, 711 F3d 120, 125-126 [2d Cir 2013] [internal quotation marks omitted]). Lacey set forth evidence that he suffered from IBS which in turn caused sleep disruption, headache, and fatigue, and could be considered a disability. Lacey provided Hampton with notice of his disability and requested a reasonable accommodation. However, according to his physician, Lacey was "able to function as a full time professor, at an average of at least a 40 hour work week."(29) There is simply no evidence that Lacey worked more than 40 hours per week such that he needed any accommodation. Based upon his testimony, he taught nine hours per week (three hours in each of three courses) and had a minimum of two hours in the office per week. Although Lacey may have taught independent study courses, he did not provide any evidence concerning the number of courses or the time devoted to each course. He also did not discuss how much time he spent preparing for his courses. Accordingly, Lacey did not establish the cause of action on the merits and the motion to conform would be denied on this basis as well.
Claimants' seventh cause of action alleges that Lacey and Gomaa were discriminated against on the basis of their disability, and that defendant acted adversely against them by failing to provide reasonable accommodations as requested, in violation of the Human Rights Law.
As previously set forth, in order to state a timely cause of action for failure to provide a reasonable accommodation to a disabled employee pursuant to the Human Rights Law, a claimant must file and serve a claim within six months of accrual (Clauberg, 19 Misc 3d at 948). For the same reasons set forth with respect to the proposed ADA cause of action, this claim filed on October 23, 2013 and served on November 13, 2013 is untimely as to this cause of action by Lacey. Defendant properly asserted that the claim was not timely filed and/or served, and thus preserved that defense pursuant to Court of Claims Act § 11 (c). Because the Court may address this issue sua sponte (Ozanam, 241 AD2d at 670-671), Lacey's cause of action alleging a violation of the Human Rights Law for failure to provide a reasonable accommodation is dismissed.(30)
Gomaa testified that she sought an accommodation when she had sciatica, and that the request was granted. No evidence was introduced to indicate that she requested any other accommodation. Accordingly, this cause of action on behalf of Gomaa is also dismissed.
While the claim does not set forth a separate cause of action for a hostile work environment, it does allege that a hostile work environment was created. The Court will accordingly address the allegation as though it was set forth as a separate cause of action by each of the claimants under the Human Rights Law.
It is well-settled that in order to establish a claim for a discriminatory hostile work environment, a claimant has the burden of proving that the workplace was " 'permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' " (Forrest, 3 NY3d at 310, quoting Harris v Forklift Sys., Inc., 510 US 17, 21 ; see also Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 83 AD3d 1332, 1333-1334 [3d Dept 2011], lv denied 17 NY3d 707 ; Mauro v Orville, 259 AD2d 89, 93 [3d Dept 1999], lv denied 94 NY2d 759 ). "Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance' " (Forrest, 3 NY3d at 310-311, quoting Harris, 510 US at 23). To establish a claim for a hostile or abusive work environment, the claimant must show that the conduct at issue was subjectively viewed as abusive (Forrest, 3 NY3d 295 at 311). The claimant must also show that a reasonable person would consider the conduct at issue objectively hostile (id.). "Isolated, minor acts or occasional episodes do not warrant relief" (Brennan v Metro. Opera Assn., Inc., 192 F3d 310, 318 [2d Cir 1999]). Moreover, as the doctrine of respondeat superior is not available under New York State law in cases involving alleged discrimination, a claimant has the burden of showing that "the employer became a party to [the discriminatory conduct] by encouraging, condoning or approving it" (Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300, 305 ; see also Forrest, 3 NY3d at 311; Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687 ).
None of the claimants' assertions that a hostile work environment existed at BU was proven by a preponderance of the credible evidence. Gomaa's testimony was confused and uncertain. The gist of her contentions was based upon: 1) having been given a one-year contract proposal instead of a three-year term, which had actually happened previously in 2004(31) and appeared to have no relation to any perceived discriminatory animus; 2) meeting with Scholtz after his encounter with the Arabic student, about which she testified that he was upset and explosive, but that it was not directed at her; and 3) allegedly being told not to speak at a departmental meeting. While perhaps someone could under some remote circumstance conceivably view these few situations subjectively as discriminatory conduct, a reasonable person could not find them objectively discriminatory, and they were clearly isolated, minor situations which would not rise to the level of a hostile work environment in any event. Gomaa apparently spoke to Hampton, but could not articulate any particular discriminatory behavior to her, and Gomaa did not file a complaint. Finally, there was no showing that the BU administration encouraged or condoned any discriminatory behavior toward Gomaa.
Mohamed's contention of the existence of a hostile environment was equally tenuous. He was apparently dissatisfied that he did not receive more assistance in obtaining his visa before initially coming to BU, although Nieman contacted Mohamed's former employer, as well as the U.S. Senator from New York, and even retained counsel specializing in immigration matters in order to expedite the approval of Mohamed's visa.
Mohamed's main grievance was that he was not hired for the tenure-track position in 2012. He was unable to establish any discriminatory basis for the cancellation of the dinner meeting during the interview process. The sole item which could have possibly been subjectively viewed as discriminatory was Scholtz' question to him about his "feelings" about the Muslim Brotherhood. However, a reasonable person would not objectively find that to be discriminatory in light of the article about the Muslim Brotherhood which Mohamed had published the previous month. Moreover, an isolated instance cannot constitute a hostile work environment. Additionally, there was no showing that the BU administration encouraged or condoned any discriminatory behavior toward Mohamed.
Lacey attempted to attribute the friction between himself and Scholtz to his (Lacey's) support of Mohamed for the tenure-track position and his support of Gomaa's desire for a three-year contract rather than a one-year contract. However, it is readily apparent that the source of the conflict was Lacey's own behavior. The letter he sent to Chancellor Zimpher clearly insinuates that the Classics program is a "[l]ow-yield major"(32) which is "not on the right side of the learning curve"(33) and "may no longer be tenable."(34) He basically advocated that the Classics program should be defunded and those resources allocated to the Arabic program. It is difficult to imagine that Scholtz would not react adversely to the suggestion made to the head of the entire University system that his departmental program be discontinued as essentially irrelevant. Lacey's highly developed sense of self-worth and clear disdain for his colleague were readily evident. A reasonable person would not objectively conclude that Lacey was subjected to a hostile work environment, but would instead view the interactions between the members of CNES as petty, non-actionable workplace squabbles between people with personality conflicts.
Accordingly, to the extent that the claim may assert a cause of action for a hostile work environment, it is dismissed as to all three claimants.
Claimants' eighth cause of action alleges that defendant breached the employment agreement with Gomaa and Mohamed. There was no testimony that defendant breached any specific provision of the employment contracts of Gomaa and Mohamed. Accordingly, defendant's motion is granted and the cause of action for breach of contract is dismissed.
While constructive termination as to both Gomaa and Mohamed were not pleaded as discrete causes of action, the allegations contained in the breach of contract cause of action can be read to include such claims. Accordingly, claimants' motion to amend the pleadings to include a cause of action for constructive termination of Gomaa and Mohamed is denied as unnecessary and the Court will address the merits of said causes of action.
In order to establish a constructive termination or discharge, a claimant must establish that defendant intentionally created a workplace so intolerable that a reasonable person would feel compelled to leave (Kripke v Benedictine Hosp., 169 Misc 2d 98 [Sup Ct 1996] affd 255 AD2d 725 [3d Dept 1988]). However, "a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge" (Chertkova v Connecticut Gen. Life Ins. Co., 92 F3d 81, 89 [2d Cir 1996], cert denied 531 US 1192 ). Nor is there a constructive discharge because the employee "does not like [his or] her assignments, receives unfair criticism, or is yelled at by supervisors" (Katz v Beth Israel Med. Ctr., 2001 WL 11064, *14, [SD NY Jan. 4, 2001, No. 95-CV-7183 (AGS)]), or because he or she develops stress-related health problems from the demands of his or her position or from criticisms of his or her performance, and subsequently determines that health considerations forced the resignation (see Spence v Maryland Cas. Co., 995 F2d 1147, 1156 [2d Cir 1993]).
Gomaa testified to a concern about whether her contract would be renewed for three years instead of one, of being told to be quiet during a departmental meeting, and of having a meeting with Scholtz where he was visibly upset, although not at her. Gomaa completed the term of her contract. She did not resign. At that point, there was no employment from which she could be constructively discharged. She was offered a new contract, which she decided to reject. A constructive discharge cannot occur where there is no employer/employee relationship.(35)
Mohamed testified that he resigned because he was not hired for the tenure-track position, and he could not stay at BU because this was a "huge insult." Mohamed's testimony did not reveal any discriminatory intimidation, ridicule or insult, much less that there was any such pervasive conduct. An isolated question by Scholtz about a recent publication on the topic of current events and news does not meet the level of proof required to show a constructive discharge. Any cause of action by Gomaa and Mohamed for constructive discharge is dismissed.
This entire litigation can be summed up as ordinary academic internecine squabbles and personality conflicts. While discrimination based upon characteristics of a protected class may be grounds for legal action, simple "animosity on the job is not actionable" (Forrest, 3 NY3d at 298).
In summary, the claim is hereby dismissed in its entirety. Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
Let judgment be entered accordingly.
November 1, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
2. Claimants stipulated prior to trial to the discontinuance of causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress with regard to all the claimants, and discrimination and retaliation against Lacey and Gomaa in violation of the Rehabilitation Act.
3. Claimants also asserted a cause of action for retaliation under the Workers' Compensation Law. Claimants' counsel acknowledged at trial that the only remedy for this cause of action was an appeal to the Workers' Compensation Board, and that the statute of limitations for such an appeal had expired before he was substituted in as attorney of record. Moreover, no evidence was adduced at trial regarding a workers' compensation claim. Accordingly, this cause of action is hereby dismissed.
4. The parties jointly requested a bifurcated trial.
5. Claimant's Exhibit 4.
6. The content of the Letter is interesting and clearly was the genesis for many of the events which form the basis of this claim. The Court will discuss the subject infra.
7. Donald Nieman was Dean of Harpur College in 2009, and was promoted to Provost of BU in 2012.
8. Claimant's Exhibit 5.
9. All quotes herein are taken from the Court's notes of the proceeding, unless otherwise indicated.
10. Under questioning, Lacey eventually admitted - reluctantly - that the Arabic world was more in the news, so that the "average student was more aware of the Arabic world in general," but he continued to insist that the increase in enrollment was solely due to his own unceasing efforts and winning personality.
11. Claimant's Exhibit 35.
12. Claimant's Exhibit 36.
13. Actually, Gomaa was offered (and accepted) a one-year contract in 2004. That contract was later amended to a term of three years.
14. Claimant's Exhibit 26.
15. While it is possible Gomaa meant February 2013, that being when the schedule of courses for Fall 2013 would have been posted, the rest of her testimony indicates that 2012 was an accurate date. Accordingly, it is not clear why she collapsed.
16. Lacey was a member of this committee, a fact apparently forgotten by Gomaa.
17. Defendant's Exhibit G at 1.
18. Id. at 2.
19. Claimants' Exhibit 35.
20. Claimants' Exhibit 36.
21. Claimants' Exhibit 31.
22. Claimants' Exhibit 34.
23. See Claimants' Exhibit 33.
24. Lacey testified he voted against extending an offer to Youssef because he was in favor of Mohamed. Obviously, this contradicted his testimony that he supported her hiring.
25. The proposed cause of action for constructive discharge will be discussed infra.
26. While the issue has not been definitively decided, it would appear that the six-month period should apply (see Clauberg v State of New York, 19 Misc 3d 942 [Ct Cl 2008] [where the Court found that Court of Claims Act 10  was applicable to a similar allegation of discrimination under the Human Rights Law]).
27. Although timely service of a notice of intention would have extended the time in which to file and serve the claim to two years (Court of Claims Act § 10 ), such a notice was not served in this case.
28. If defendant had failed to allege a timeliness defense in its answer, the motion would nevertheless be denied. Allowing such an amendment at this late stage in the litigation would clearly be prejudicial as defendant would be precluded from asserting a winning affirmative defense.
29. Claimants' Exhibit 36.
30. Moreover, as also set forth above, Lacey did not show that any accommodation was necessary prior to his heart attack, at which time a satisfactory accommodation was provided.
31. See Defendant's Exhibit G.
32. Claimant's Exhibit 4 at 1.
33. id. at 2.
35. In addition, it should be noted that workplace interactions are not always pleasant, but nothing in Gomaa's testimony indicated that while she was employed at BU there existed any discriminatory intimidation, ridicule or insult toward her, and there was certainly no evidence that any such conduct was severe and pervasive.