Holm v. Ithaca College

• Decision Date: 24 December 1998
• Citation: 682 N.Y.S.2d 295
• Parties: 131 Ed. Law Rep. 823, 1998 N.Y. Slip Op. 11,422 Einar HOLM, Appellant, v. ITHACA COLLEGE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 295

682 N.Y.S.2d 295

131 Ed. Law Rep. 823, 1998 N.Y. Slip Op. 11,422

Einar HOLM, Appellant, v. ITHACA COLLEGE, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 24, 1998.

James A. Baker, Ithaca, for appellant.

Costello, Cooney, Fearon LLP (Frances A. Ciardullo of counsel), Syracuse, for respondent.

Before: CARDONA, P.J., MIKOLL, CREW, WHITE and YESAWICH, JJ.

CARDONA, P.J.

Appeal from an order and judgment of the Supreme Court (Relihan Jr., J.), entered February 9, 1998 in Tompkins County, which granted defendant's motion for summary judgment dismissing the amended complaint.

Plaintiff commenced his employment with defendant in 1968 as a professor of music, specializing in the cello, and was granted tenure in 1973. In 1978, he was reprimanded for treating students in an abrasive and humiliating manner. In 1986, plaintiff was again reprimanded for his conduct toward students, specifically regarding complaints of sexual harassment in the form of "sexual innuendo, commentary and sexually oriented questions of students related both to classroom activities and to their personal lives". He was warned that he would be terminated if such conduct persisted.

In May 1992, three female students filed formal complaints against plaintiff alleging, inter alia, that he engaged in sexual harassment through the use of sexual discussion and innuendo in the classroom. Following investigation of the complaints by defendant's affirmative action officer and plaintiff's admission to using certain sexually explicit terminology in the classroom, defendant's Provost determined that plaintiff had created an intimidating environment having an adverse effect on the students which violated its sexual harassment policy. As a result, plaintiff was instructed to take remedial action including the cessation of any further sexually explicit remarks. The Provost further informed plaintiff, by memorandum dated November 13, 1992, that he would be subject to an ongoing assessment, which would include periodic unannounced classroom visits by the Dean of the School of Music in order to monitor his performance, and that failure to comply with the required actions would result in his termination. Plaintiff sought review by the Discrimination Complaint Review Committee which agreed with the Provost's findings.

Plaintiff's performance was monitored during the spring 1993 semester. As a result of observations made by the Dean and evaluations received from certain students, plaintiff was informed in May 1993 that his continued use of sexual innuendo and sexual allusion in his class presentations was not in compliance with the remedial plan. Upon the recommendation of the Provost, plaintiff was discharged on August 17, 1993.

In April 1995, plaintiff commenced this action alleging various claims, including a cause of action for breach of contract. Following the dismissal of the complaint against the individual officers of defendant, plaintiff served an amended complaint. Defendant made a motion for summary judgment dismissing the amended complaint which was granted by Supreme Court, and plaintiff appeals.

Plaintiff challenges only the dismissal of his breach of contract...