Commodari v. Long Island University
| Decision Date | 31 March 2000 |
| Docket Number | Civil Action No. CV-99-2581 (DGT). |
| Citation | 89 F.Supp.2d 353 |
| Parties | Dr. Fernando COMMODARI, Plaintiff, v. LONG ISLAND UNIVERSITY and Long Island University Faculty Federation, Local 3998, NYSUT, AFT, AFL-CIO, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Dr. Fernando Commodari, Brooklyn, NY, pro se.
Thomas S. Baylis, James G. Ryan, Cullen & Dykman, Garden City, NY, for Defendant Long Island University.
Mitchell H. Rubinstein, Office of General Counsel, New York State United Teachers, New York City, for Defendant Long Island University Faculty Federation.
REVISED MEMORANDUM AND ORDER
Plaintiff pro se Fernando Commodari, Ph.D. ("Dr. Commodari") originally brought this hybrid Labor Management Relations Act § 301/duty of fair representation action against defendants Long Island University ("LIU") and the Long Island University Faculty Federation (the "Union"), alleging that he was terminated in violation both of the collective bargaining agreement ("CBA") between LIU and the Union and a 1998 arbitral decision rendered in his favor. Both defendants filed motions to dismiss and/or for summary judgment.
Pending decision on those motions, plaintiff, with leave of the court, amended his complaint to allege national origin discrimination in violation of § 1983, § 1981, Title VI, and Title VII against both defendants. In response, LIU filed a motion to dismiss the employment discrimination claims, and the Union filed a motion to dismiss and/or for summary judgment on those same claims. The court now decides both sets of motions.
Dr. Commodari was appointed to the position of assistant professor in the Chemistry Department at LIU's Brooklyn campus in the fall of 1996 and was subsequently reappointed for the 1997/1998 fiscal year. In the fall of Dr. Commodari's second year teaching at LIU, the department conducted a mandatory yearly review as required by the CBA. In a split vote, the Chemistry Department Personnel Committee recommended that he be reappointed for a third year at LIU. His department chairman, however, disagreed.
Under the terms of the CBA, when the department chairman and the department personnel committee give conflicting recommendations on reappointment, a professor's case must be submitted to a third, multidisciplinary organ, the Faculty Review Committee ("FRC"), whose decision will resolve the conflict. (CBA art. VIII, § 2(f).) On November 24, 1997, Dr. Commodari was given notice of termination effective August 31, 1998, despite the fact that his case had not yet been submitted to the FRC.
Dr. Commodari filed a grievance with the Union, which, pursuant to the CBA, brought the matter to arbitration. On July 6, 1998, the arbitrator issued a decision in Dr. Commodari's favor, holding that LIU had violated the CBA by terminating Dr. Commodari without having convened a meeting of the FRC to resolve the conflicting recommendations of the department chairman and the department personnel committee. See Long Island Univ. Faculty Fed'n v. Long Island Univ., No. 13-390-00778-98 (Am. Arb'n Ass'n July 6, 1998) (Adelman, Arb.). The arbitrator ordered that Dr. Commodari be reappointed "to a probationary position in the Chemistry department for the 1998-99 academic year" and admonished LIU to "follow the reappointment procedures under the [CBA]" in the future. Id. at 9. The arbitrator did not, however, review the merits of Dr. Commodari's performance as an assistant professor. See id. passim.
In accordance with the arbitrator's decision, Dr. Commodari was appointed to a third year of probationary employment, which was to begin September 1, 1998, and end on August 31, 1999.
In early August 1998, an additional review of Dr. Commodari's performance was conducted, with the result that on August 17, 1998, LIU sent Dr. Commodari a notice of termination effective August 31, 1999. The effect of the August 17, 1998 notice was, thus, to deny Dr. Commodari a fourth year of probationary employment at LIU.
On January 20, 1999, Dr. Commodari filed a formal grievance with the Union, protesting this latest notice of termination. This time, however, the Union declined to pursue his grievance.
On May 5, 1999, Dr. Commodari, who was initially represented by counsel, brought this action against LIU and the Union, alleging that the August 17, 1998 termination notice did not conform to the reappointment procedure specified in the CBA and, hence, violated the July 6, 1998 arbitral award. With regard to the Union, Dr. Commodari claimed that the Union's failure to pursue his grievance constituted a breach of the Union's duty of fair representation.
On August 25, 1999, Dr. Commodari, acting pro se, moved for a temporary restraining order and/or preliminary injunction enjoining LIU from terminating him on August 31, 1999.1 In response, LIU and the Union cross-moved to dismiss and/or for summary judgment.
On September 22, 1999, Dr. Commodari, who is of Italian ancestry, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") against LIU. In the charge, Dr. Commodari alleged that LIU had terminated his employment because of his national origin. In addition, Dr. Commodari alleged that LIU retaliated against him for opposing discriminatory hiring practices. Six days later, on September 28, 1999, the EEOC issued a right-to-sue letter to Dr. Commodari on his charge against LIU.
On that same day, Dr. Commodari filed a charge of discrimination with the EEOC against the Union. In the charge, Dr. Commodari alleged that the Union had been a party to LIU's discrimination against him. Two days later, on September 30, 1999, the EEOC issued Dr. Commodari a right-to-sue letter on the charge against the Union.
On October 12, 1999, oral argument was held on both Dr. Commodari's motion for a preliminary injunction and on the defendants' cross-motions for summary judgment. As stated on the record, Dr. Commodari's motion for a preliminary injunction was denied on the grounds that he had not established a likelihood of success on the merits. (Tr. 46-47.)
In support of their cross-motions for summary judgment, defendants raised procedural arguments based on exhaustion and standing, in addition to a substantive argument based on the interpretation of the CBA and the arbitral decision. In papers submitted prior to oral argument, Dr. Commodari contested the defendants' interpretation of the CBA and further suggested that actual past practice with respect to review and notice procedures differed from that urged by defendants. In response, the Union submitted an affidavit by its President, Dr. Rhiannon Allen ("Dr.Allen"), in which she cited a number of termination decisions involving other assistant professors that she claimed supported the defendants' interpretation of the CBA. At oral argument, Dr. Commodari raised a substantial issue with regard to the accuracy of Dr. Allen's affidavit, and defendants' motions were denied. Defendants were, however, given leave to renew their motions upon submission of university personnel records that verified Dr. Allen's affidavit.
On November 5, 1999, LIU submitted various personnel records in response to the court's directive, and defendants renewed their motions for summary judgment on Dr. Commodari's § 301/fair representation claim shortly thereafter.
Pending decision on the defendants' motions for summary judgment, plaintiff, by leave of court, amended his complaint to plead national origin discrimination in violation of the § 1983, § 1981, Title VI, and Title VII against both LIU and the Union, as well as retaliation claims against LIU.
On November 30, 1999, the Union filed a motion to dismiss and/or for summary judgment on the Amended Complaint
On December 3, 1999, LIU filed a motion to dismiss the Amended Complaint.
(1)
Applicable Standards of Review
With the exception of LIU's motion to dismiss the employment discrimination claims of plaintiff's Amended Complaint, defendants style their motions as "motions to dismiss and/or for summary judgment." Pursuant to Fed.R.Civ.P. 12(b), the latter motions will be treated as motions for summary judgment inasmuch as defendants' arguments are not confined to the pleadings, but, instead, rely on affidavits from university and union officials, as well as documentary evidence concerning past review and termination practice at LIU. See Fed.R.Civ.P. 12(b). Plaintiff has received a copy of the Notice to Pro Se Litigants required by Local R. Civ. P. 56.2 and has been given a reasonable opportunity to present all material pertinent to his opposition to summary judgment.2
LIU's motion to dismiss the employment discrimination claims, however, is not styled in the alternative as a motion for summary judgment and does not present matters outside the Amended Complaint. LIU's motion on Dr. Commodari's employment discrimination claims, therefore, will be decided under the standards applicable to a motion to dismiss pursuant to Rule 12(b)(6). See Fed.R.Civ.P. 12(b).
Fed.R.Civ.P. 56(c) provides that summary judgment "shall be rendered forthwith" if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-328, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-252, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if the evidence in the record would allow a reasonable jury to return a verdict for the non-moving party. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510....
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