584 F.3d 487 (2nd Cir. 2009), 07-4567-cv, Leibowitz v. Cornell University

Docket Nº:07-4567-cv.
Citation:584 F.3d 487
Opinion Judge:BIANCO, District Judge:
Party Name:Margaret Sipser LEIBOWITZ, Plaintif-Appellant, v. CORNELL UNIVERSITY, New York State School of Industrial and Labor Relations, Edward J. Lawler, Ronald Seeber, Ann W. Martin, Esta R. Bigler and Nick Salvatore, Defendants-Appellees.
Attorney:David M. Marek, (Jeffrey L. Liddle on the brief) Liddle and Robinson, LLP, New York, NY, for Plaintif-Appellant. Wendy E. Tarlow, (Nelson E. Roth, Valerie Cross Dorn and Norma W. Schwab on the brief), Cornell University, Ithaca, NY, for Defendants-Appellees.
Judge Panel:Before: KEARSE and KATZMANN, Circuit Judges, and BIANCO, District Judge.[*]
Case Date:October 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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584 F.3d 487 (2nd Cir. 2009)

Margaret Sipser LEIBOWITZ, Plaintif-Appellant,

v.

CORNELL UNIVERSITY, New York State School of Industrial and Labor Relations, Edward J. Lawler, Ronald Seeber, Ann W. Martin, Esta R. Bigler and Nick Salvatore, Defendants-Appellees.

No. 07-4567-cv.

United States Court of Appeals, Second Circuit.

October 23, 2009

Argued: Feb. 27, 2009.

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David M. Marek, (Jeffrey L. Liddle on the brief) Liddle and Robinson, LLP, New York, NY, for Plaintif-Appellant.

Wendy E. Tarlow, (Nelson E. Roth, Valerie Cross Dorn and Norma W. Schwab on the brief), Cornell University, Ithaca, NY, for Defendants-Appellees.

Before: KEARSE and KATZMANN, Circuit Judges, and BIANCO, District Judge.[*]

BIANCO, District Judge:

Plaintiff Margaret Sipser Leibowitz appeals from so much of a final judgment entered in the United States District Court for the Southern District of New York (George B. Daniels, Judge ), as dismissed her complaint against her employers, Cornell University (" Cornell" or the " University" ) and the New York State School of Industrial and Labor Relations (" the ILR School" ), as well as the individually-named defendants, asserting (1) claims of gender and age discrimination based upon the non-renewal of her employment contract, in violation of Title VII of the Civil Rights Act of 1964,

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42 U.S.C. § 2000e et seq. , as amended (" Title VII" ), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. , as amended (the " ADEA" ), as well as state and municipal laws, and (2) state claims for breach of contract, breach of implied-in-fact contract, unjust enrichment, and quantum meruit. The district court granted summary judgment in favor of the defendants on the discrimination claims on the grounds that (a) plaintiff had failed to establish a prima facie case because she presented insufficient evidence to show that she suffered an adverse employment action when defendants refused to renew her contract, and there was insufficient evidence to give rise to an inference of discrimination, and (b) even if plaintiff established a prima facie case, defendants proffered a non-discriminatory reason for refusing to renew plaintiff's employment contract, and plaintiff had presented insufficient evidence to support a conclusion that the articulated reason was a pretext for discrimination. The district court also dismissed plaintiff's breach of contract claims on the ground that she failed to raise any issues of fact regarding whether she had an implicit guarantee of job security on par with tenured faculty members, as well as her claims of breach of implied-in-fact contract, quantum meruit, and unjust enrichment in connection with work she performed after she officially ended her employment with Cornell. On appeal, Leibowitz contends that summary judgment was improper because there were genuine issues of fact to be tried.

For the reasons that follow, we vacate the district court's grant of summary judgment on appellant's Title VII, ADEA, New York State Human Rights Law (" NYSHRL" ) and New York City Human Rights Law (" NYCHRL" ) claims and remand this case to the district court for further proceedings consistent with this opinion. The district court's grant of summary judgment on appellant's claims of breach of contract, breach of implied-in-fact contract, quantum meruit, and unjust enrichment is affirmed.

BACKGROUND

The following facts were taken from the record before the district court, construed in the light most favorable to plaintiff, the non-moving party. See, e.g., Hotel Employees & Rest. Employees Union, Local 100 v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir.2002).

A. Plaintiff's Employment at the ILR School

The ILR School is a " contract college" at Cornell, a statutorily-created partnership between the University and New York State, which offers a four-year undergraduate program in industrial and labor relations and receives state funding through the State University of New York (" SUNY" ) system. It has both a Resident Division, which teaches undergraduate and graduate courses at Cornell's Ithaca campus, and an Extension Division, which offers courses designed for working practitioners at regional offices in Buffalo, Albany, New York City, Rochester, and Long Island. In 1983, after receiving her undergraduate degree from the ILR School and her law degree from New York University, plaintiff began her employment with the ILR School as an Extension Associate in the Extension Division. In 1987, after successfully completing the Extension Division's " peer review process," she was promoted to the position of Senior Extension Associate II. Plaintiff's employment was a term appointment, in accordance with Cornell and ILR School written policy, which stated that senior extension associates may be appointed to " terms of up to five years and may be reappointed on the basis of

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recommendations by the department and the appropriate extension director and dean(s)." When plaintiff's employment contract was due to expire in October 1997, defendants assert that Associate Dean Ronald Seeber planned not to renew her appointment because of her strained relationship with the supervisor of the New York City office, Esta Bigler, but ultimately changed his mind because, first, plaintiff secured a project that permitted her to work away from the New York City office in the spring of 1998 and, second, the Resident Division needed teachers for particular courses in areas of plaintiff's expertise. Accordingly, plaintiff was reappointed for the term from February 1, 1998 to October 31, 2002. She then began teaching a full class schedule for the Resident Division, while also teaching and developing Extension programs and serving as a thesis advisor for undergraduate students. Between 2000 and 2003, plaintiff won various teaching accolades.

B. The Renewal Process

Cornell and ILR School policy stated that senior extension associates were appointed to five-year terms, renewable on the basis of department recommendations. Moreover, each of plaintiff's appointment letters in 1984, 1987, 1992, and 1998 explicitly indicated that the appointment was for a finite term and was contingent upon funding. Plaintiff acknowledges that the position of Senior Extension Associate II was not a tenured one. In fact, plaintiff sent an e-mail in 2000 to a friend in which she stated, " I'm just a lowly, untenured Extension person." However, plaintiff asserts that she held a position equivalent to that of a tenured professor and cites several pieces of evidence to support that assertion.

First, it is undisputed that, prior to the non-renewal of plaintiff's contract, defendants had never terminated, laid off, or failed to renew the contract of one holding the position of Senior Extension Associate II without cause.

Second, plaintiff points to the ILR Faculty Personnel Policies, which describe the process for " Reappointment and Promotion of Non-tenured Faculty Members," and plaintiff sets forth evidence that the enumerated process was not followed with respect to senior extension associates. Defendants note that the policy refers only to " assistant professors" (i.e., tenure-track professors) and does not reference senior extension associates and has no application to them.

Finally, plaintiff points to the belief by two senior extension associates that they had a position that was essentially equivalent to tenure, as well as statements by three other Cornell employees in which they stated they had heard or believed that senior extension associates had something similar to (but not) tenure, or that the review process was " pro forma."

As noted above, plaintiff was reappointed as a senior extension associate for the term from February 1, 1998 to October 31, 2002.

C. Plaintiff's Travel Expenses

While plaintiff was teaching at the Ithaca campus, she was based in the New York City metropolitan area, and Cornell reimbursed her travel costs. In 2001, Cornell's tax compliance office required the ILR School to categorize plaintiff's travel expenses as taxable income. Accordingly, to maintain plaintiff's salary at its then-current level, the ILR School had to pay plaintiff a gross amount exceeding that of her travel expenses in order to cover the added cost of personal income taxes incurred. In March 2001, Dean Edward J. Lawler informed plaintiff that the ILR School would pay her $20,000 towards her

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travel expenses. In December 2001, plaintiff informed Dean Lawler that this amount was insufficient to cover her expenses and apologized for the delay in bringing it to his attention, noting that the events of September 11, 2001 had made it difficult for her to estimate her actual costs of travel for the fall semester. Dean Lawler initially denied her request, prompting plaintiff to write to him that she was " truly sorry for the misunderstanding about the travel money" but could not afford to cover her travel costs and wished to speak with him about her ability to meet her spring semester commitments. Dean Lawler then increased the amount of her travel allowance to $29,000. In January 2002, plaintiff thanked him for the " generous offer," but noted that the funds were still insufficient. Dean Lawler then increased the travel compensation to $30,000, but felt frustrated by plaintiff's repeated requests, interpreting them as " forceful," " demanding," and " pushy."

In June 2002, plaintiff again contacted the ILR School regarding travel reimbursement. Defendants submit that this overture reminded Dean Lawler that her contract was set...

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