Kazimierski v New York Univ.
Annotate this CaseDecided on March 13, 2006
Supreme Court, New York County
Daniel Kazimierski, Plaintiff,
against
New York University, KEN DANCYGER and MARY SCHMIDT CAMPBELL, Defendants.
110977/05
Walter B. Tolub, J.
By this motion Defendants New York University ("NYU"), Mary Schmidt Campbell ("Campbell") and Kenneth Dancyger ("Dancyger") seek an order dismissing the action pursuant to CPLR § 3211(1)(5) and (7) on the grounds that the causes of action are time barred by the statute of limitations and fail to state a cause of action.
Background
This is the third proceeding in which Plaintiff Kazimierski has attempted to bring employment discrimination claims. The Plaintiff, Daniel Kazimierski ("Kazimierski")brought two previous causes of action for employment discrimination claims. On November 22, 1994 Plaintiff filed an Administrative Complaint with the New York City Commission of Human Rights ("NYCCHR"), claiming discrimination on the basis of his national origin, age and retaliation. More than eight years later, on April 16, 2003 the Administrative Complaint was dismissed under N.Y.C. Admin. Code § 8-113(a)(1) on the grounds that the NYCCRH's Law Enforcement Bureau had been unable to locate Plaintiff. Then, on December 19, 2000 Plaintiff commenced an action in New York State Supreme Court, Westchester County. On July 9, 2004 the court granted Defendants' motion to dismiss for lack of personal jurisdiction.
The plaintiff was employed by NYU as a faculty member from 1984 through 1994 at the Tisch School of the Arts ("TSOA"). During the last seven years of his employment the plaintiff was an Associate Professor at the TSOA graduate film department. Defendant Campbell was the Dean of TSOA and Dancyger was the Chair of the TSOA film department.
Kazimierski alleges in his Amended Complaint that he was denied tenure because of age and national origin discrimination through disparate treatment. He claims; (1) disparate treatment regarding the denial of tenure and numerous other acts; and (2) a hostile work environment based on the same alleged acts. Specifically, Kazimierski alleges;(1) An unspecified demotion at an unspecified time; (2) Dancynger's refusal to respond to his request to teach at the International Center of Photography; (3) Dancynger's refusal to allow him to teach a course entitled "Fundamentals of Sight and Sound"; (4) Dancynger's refusal to attend or monitor [*2]his classes; (5) Dancynger's refusal to meet with him; (6) Dancynger's refusal to respond to inquiries regarding TSOA and NYU policies; (7) Denial of tenure; (8) Denial of the opportunity to teach a summer program; (9) Assigning and compelling him to attend meetings of "relatively innocuous committees"; and (10) Manipulating a faculty vote in order to deny him a teaching award. Defendants' motion to dismiss the Amended Complaint is granted in part and denied in part.
Discussion
Claims for Disparate Treatment
The statute of limitations on claims brought under the NYCHRL is three years. (N.Y.C. Admin. Code § 8-502(d); Forrest v. Jewish Guild for the Blind, 309 AD2d 546 [1st Dept 2003])affd. 786 3 NY3d 295. If a plaintiff files a complaint with the NYCHRL, the three year statute of limitations period is tolled during the pendency of the administrative proceeding. (Id.) Under N.Y.C. Admin. Code § 8-502(d), tolling applies only to the discriminatory practices alleged in the administrative complaint.
The Plaintiff filed the Administrative Complaint, that began the tolling of the statute of limitations on November 22, 1994. The limitations period remained tolled until April 16, 2004, the date that complaint was dismissed. Five of the discriminatory practices that are alleged in this complaint were not alleged in the Administrative Complaint, these practices are listed above as 2, 4, 5, 6 and 10. These practices occurred at least eleven years before the claims were interposed and do not receive the benefit of the tolling statute, therefore they are time barred.
Certain disparate treatment claims that were in the Plaintiff's Administrative Complaint are also time barred. Disparate treatment claims that arose prior to March 13, 1994, listed above as numbers 3 and 7, are barred by the statue of limitations. Defendants' counsel calculated the March 13, 1994 date as follows: From the time that the tolling period ended (April 16, 2003) until the commencement of this action (August 5, 2005), two years and 111 days had elapsed. Because the tolling period did not start until November 22, 1994, the claims are untimely if they accrued more that 254 days before November 22, 1994 i.e., prior to March 13, 1994.
An employment discrimination action accrues on the date when the employee receives definite notice of the alleged discriminatory decision. (Delaware State Coll. V. Ricks, 449 US 250 [1980]; See Cordone v. Wilens & Baker, P.C., 286 AD2d 597, 598 [1st Dept 2001])("an employment discrimination claim accrues on the date that an adverse employment determination is made and communicated to the plaintiff."). The plaintiff alleged that he was notified that he would not be permitted to teach "Fundamentals of Sight and Sound" in the late fall of 1993 and that he was notified of the negative tenure decision no later than September 15, 1993. Therefore, both the teaching claim and the tenure claim are time barred.
The plaintiff then argues that when an employee is deliberately misled as to the true nature for the denial and is prevented from exercising his rights, tolling is permitted as a matter of fairness. (Miller v. IT&T, 755 F2d 20 [2d Cir. 1985]). Plaintiff's allegations do not warrant equitable tolling. Courts have held that "the fact that defendants may have provided [pretextural] reasons for the employment action does not justify an inference that the plaintiff was misled." (Syrkin v. State University of New York, 04-CV-4336, 2005 WL 2387819, at *9 [SDNY Sept 29, 2005]). "[T]o hold otherwise would allow the exception of equitable tolling to swallow the [*3]rule...that an employee's awareness of a discriminatory motive has no bearing on the [statue of limitations]." (Id., at *9). Therefore, there is no equitable tolling and both the teaching claim and the tenure claim are time barred.
Practices numbered 1, 8 and 9 above, are not dismissed, however, the Plaintiff must provide the Defendants with a more definite statement of the discriminatory demotion claim pursuant to CPLR § 3024(a). Plaintiff fails to state when or even how the demotion occurred. The claim alleging demotion is so vague and ambiguous that the Defendants are unable to frame an appropriate response. As such, Plaintiff must clarify his pleadings.
Hostile Work Environment
Additionally, the Plaintiff's hostile work environment claim is dismissed. In order to state a claim for a hostile work environment the complaint must assert: (1) that the plaintiff is a member of a protected class; (2) that the conduct or words upon which the claim of harassment is predicated were unwelcome; (3) that the conduct or words were prompted simply because the plaintiff was in the protected class; (4) that the conduct or words created a hostile work environment which affected a term, condition or privilege of his employment; and (5) that the defendant is liable for such conduct. (Samide v. Roman Catholic Diocese of Brooklyn, 194 Misc 2d 561[NY Supp. 2003] also Monte v. Ernst & Young, LLP, 330 F.Supp2d 350 [SDNY 2004]). The complaint must allege conduct severe or pervasive enough to create a work environment that a reasonable person would find hostile or abusive, and it must allege that the victim subjectively perceived the environment to be hostile. (Harris v. Forklift Sys., Inc., 510 US 17, 21-22 (1993). In the Administrative Complaint, Plaintiff only brought claims for retaliation and disparate treatment. Plaintiff never alleged that he was harassed or that the acts complained of created a hostile work environment. Thus, if this court or any other court, were to have entertained an action to dismiss Plaintiff's cause of action for a hostile work environment, it would have been granted because of Plaintiff's failure to properly support the cause of action. The same can be said here. Although Plaintiff has made numerous allegations, taken together Plaintiff fails to maintain a cause of action for a hostile work environment. Furthermore, because the Plaintiff failed to allege claims of harassment and hostile work environment in the Administrative Complaint, the otherwise applicable three-year statute of limitations was not tolled thereby barring Plaintiff's claims. Therefore, asserting a cause of action for a hostile work environment is also time barred.
Accordingly it is ORDERED that Defendants' motion to dismiss the complaint is granted as to discriminatory disparate practices numbered 2, 3, 4, 5, 6, 7 and 10 as they are all time barred; and it is further
ORDERED that the Plaintiff is to provide a more definite statement of his claim pursuant to CPLR §3024(a) on practice numbered 1 within thirty (30) days of service of a copy of this order with notice of entry; and it is further
ORDERED that Plaintiff's cause of action for a hostile work environment is dismissed as time barred as harassment and hostile work environment were not alleged in the Administrative Complaint.
Counsel for the parties are directed to appear on May 19, 2006 at 11:00 am at 60 Centre Street, Room 335 for a preliminary conference. [*4]
This memorandum opinion constitutes the decision and order of the Court.
Dated: March 13, 2006____________________________
HON. WALTER B. TOLUB, J.S.C.
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