Apionishev v. Columbia Univ. in the City of New York

• Decision Date: 23 January 2012
• Docket Number: 09 Civ. 6471 (SAS)
• Parties: SERGEY APIONISHEV, Plaintiff, v. COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

SERGEY APIONISHEV, Plaintiff,

v.COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Defendant.

09 Civ. 6471 (SAS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date: January 23, 2012

OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

Dr. Sergey Apionishev, proceeding pro se, has sued Columbia University in the City of New York¹ alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act of 1990 ("ADA"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). Plaintiff's allegations are premisedon the termination of his employment as a laboratory research scientist by Columbia on September 30, 2004, and four allegedly negative letters of reference sent by his former supervisor, Dr. Daniel D. Kalderon, to prospective employers. Columbia has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Columbia's motion for summary judgment is granted in its entirety and this case is dismissed.

II. FACTS

A. Prior Proceedings

Apionishev filed a charge with the Equal Employment Opportunity Commission ("EEOC") on August 28, 2008, and received a right-to-sue letter on April 19, 2009. Apionishev filed the instant action on July 6, 2009, asserting claims under Title VII, the ADA, the NYSHRL, and the NYCHRL. Apionishev alleged that he was discriminated against based on his disability (HIV+ status) and national origin (Russian), that Columbia failed to accommodate his disability, and that he was the victim of retaliation. On November 20, 2009, Apionishev filed an Amended Complaint and, on May 19, 2010, he filed a Second Amended Complaint ("SAC").²

Columbia moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), seeking to dismiss most of plaintiff's claims. On March 25, 2011, this Court issued an Opinion and Order granting Columbia's motion for judgment on the pleadings in its entirety.³ In that motion, however, Columbia did not seek dismissal of: (1) any claims of retaliation asserted under Title VII and the ADA for improper reference letters circulated by Dr. Kalderon within three years of the filing of the initial Complaint; and (2) any claims of intentional tort for improper references circulated by Dr. Kalderon within one year of the filing of the initial Complaint.⁴ In addition, plaintiff's motion to file a third amended complaint was denied on the ground of futility.⁵

Two subsequent actions brought by plaintiff and consolidated with the instant, lead action - Apionishev v. Department of Biological Sciences of Columbia University, 10 Civ. 7742 (SAS), filed on October 5, 2010, and Apionishev v. The Trustees of Columbia University, 10 Civ. 9287 (SAS), filed on December 8, 2010 - were dismissed for reasons stated on the record at a conference held on June 7, 2011. At that conference, this Court addressed the claim brought by plaintiff pursuant to Title IX of the Education Amendments of 1972⁶ ("Title IX") as follows:

Plaintiff's Title IX claim is subject to the three-year statute of limitations applicable to personal injury actions. . . . Thus, except for alleged retaliatory letters of reference sent within three years of plaintiff's October 5, 2010 filing in this action, plaintiff's Title IX claim must be dismissed. However, in the lead action, Columbia University did not seek to dismiss any claims asserted under Title VII and the ADA for reference letters sent within the three-year period preceding the filing of that lawsuit. . . . Rather than have two parallel actions in which plaintiff's claim regarding the alleged retaliatory reference letters will be litigated, I will permit plaintiff to assert any timely claims under Title IX in the lead case, 09 Civ. 6471. Accordingly, plaintiff's Title IX claim in this action is dismissed in its entirety.

* * *

In sum, in the lead case 09 Civ. 6471, plaintiff will be permitted to litigate, under Title IX, those letters of reference sent within the three-year period precedingOctober 5, 2010. Plaintiff will also be permitted to litigate under Title VII, the ADA, and New York common law for intentional torts, those letters of reference sent within the three-year period preceding July 6, 2009, the date the initial complaint was filed in the lead case.⁷

In granting Columbia's motion for judgment on the pleadings in the lead action, this Court noted that the doctrine of respondeat superior is not available for discrimination and retaliation claims brought under New York state law.⁸ This Court dismissed plaintiff's discrimination and retaliation claims under the NYSHRL.⁹ However, the NYCHRL applies vicarious liability principles so as to permit a retaliation claim against an employer in certain instances.¹⁰ Accordingly, I now must address plaintiff's retaliation claim under the NYCHRL based upon Dr. Kalderon's allegedly improper letters of reference. Thus, the only claims that survived the motion for judgment on the pleadings include Claim 12 (Retaliation under Title VII, the ADA, Title IX, and the NYCHRL) and those portions of Claims 9 and 10 (Intentional Tort under New York common law) that are not time-barred.¹¹ Plaintiff's retaliation claims under Title VII, the ADA, and the NYCHRL are limited to the three-year period preceding July 6, 2009, while his retaliation claim under Title IX is limited to the three-year period preceding October 5, 2010. Plaintiff's intentional tort claims, consisting of defamation claims for libel and slander, are governed by a one-year statute of limitations,¹² which limits plaintiff's claims to the one-year period preceding July 6, 2009. Finally, at a conference held on August 9, 2011, I allowed plaintiff to incorporate allegations of retaliation relating to a letter sent to Apionishev from Arthur Toback, counsel to Columbia, dated March 2, 2011 (the "March 2, 2011 Letter" orthe "Letter")¹³ and a subsequent email dated March 2, 2011 (the "March 2, 2011 Email" or the "Email"),¹⁴ sent by Dr. Kalderon to Toback, and inadvertently disclosed to Apionishev, commenting on the Letter. Rather than permit plaintiff to file a Third Amended Complaint, his new allegations of discriminatory retaliation were deemed incorporated into the Second Amended Complaint.¹⁵

B. Factual Background

Apionishev worked at Columbia University from October 1, 1999 until September 30, 2004, as a PhD laboratory research scientist in a research program supervised by Dr. Daniel Kalderon.¹⁶ In April 2004, plaintiff complained to the University about his salary and conditions of employment.¹⁷ Plaintiff also complained of harassment and discrimination to the University's Provost. By letter dated April 21, 2004, Columbia's Assistant Provost informed plaintiff thatthe University believed that he had, in fact, been treated properly.¹⁸ Plaintiff was terminated on September 30, 2004. The instant action was commenced by the filing of a Summons and Complaint on July 6, 2009.¹⁹ The Complaint followed a written Charge of Discrimination filed with the United States Equal Employment Opportunity Commission ("EEOC") on August 28, 2008, as amended on September 29, 2008.²⁰ Notice of plaintiff's Charge was sent to Columbia by the EEOC on October 28, 2008.²¹

1. Letters of Reference

After Apionishev left Columbia, he asked Dr. Kalderon to send letters of reference to certain prospective employers.²² For example, on January 3, 2006, Dr. Kalderon wrote to Henderson Jones of Regeneron Pharmaceuticals.²³ In that letter, Dr. Kalderon concluded with the following language:

I think the above paragraph summarizes the bare facts. If you have specific questions please feel free to contact me. For what it's worth, I have a suspicion that Sergey might function best in a fairly rigid environment where precise expectations are clear and can be met or addressed on a regular basis. It would also be fair to say that Sergey and I did not have the ideal relationship.²⁴

The above language - referring to a "fairly rigid environment" and a less than "ideal relationship" - was typical of the initial reference letters drafted by Dr. Kalderon and sent to plaintiff's prospective employers.²⁵ Also typical was the following language concerning Dr. Kalderon's belief about the "norms of productivity" in Apionishev's area of research:

I am not certain if you are aware of the norms for productivity in Drosophila research. It is common for a single successful project to take about two years to complete once you have established a clear entry-point of interest. In my lab both students and post-docs have typically taken about 3-4 yrs before publishing anything & then produced a second (usually the best) paper in another year or so. While I would love to be more productive I give you this as the most relevant frame of reference.²⁶

In an email dated November 30, 2007, Apionishev requested that Dr. Kalderon revise future letters of reference by deleting the two sentences concerning the "fairly rigid environment" and the less than "ideal relationship."²⁷ Apionishev accompanied his email request with a copy of the Henderson Jones reference letter with the two sentences underlined, as shown above.²⁸ Apionishev did not underline any other sentences in the Henderson Jones reference letter, nor did he request any other changes to the form of future letters of reference.²⁹

During the course of this litigation, Columbia identified four letters of reference sent by Dr. Kalderon that fell within the applicable limitations periods (the "Letters of Reference"): a second letter to Henderson Jones dated January 17, 2008 (erroneously dated January 17, 2007); a letter dated February 15, 2008, to Dr. Lucy Williams of the University of Puerto Rico; a letter dated May 21, 2008, to Dr. Feske of Mt. Sinai Medical Center; and a letter dated July 22, 2009, to Dr. Andreas Jenny of Yeshiva University's Albert Einstein College of Medicine.³⁰ These four letters were...