Keles v. Davalos

• Decision Date: 05 August 2022
• Docket Number: 19-CV-3325 (DG) (TAM)
• Parties: RESAT KELES, Plaintiff, v. JULIO DAVALOS, Individually and as Chair of the Department of Civil Engineering, ANIL AGRAWAL, Individually and as Professor in the Department of Civil Engineering, ALISON CONWAY, Individually and as Professor in the Department of Civil Engineering, VASIL DIYAMANDOGLU, Individually and as Professor in the Department of Civil Engineering, ROBERT PAASWELL, Individually and as Professor in the Department of Civil Engineering, VINCENT BOUDREAU, Individually and as President of CITY COLLEGE OF NEW YORK, and ELIZABETH WITTIG, Individually and as Professor, Chair and Vice Chair of the Department of Civil Engineering, Defendants.
• Court: U.S. District Court — Eastern District of New York

RESAT KELES, Plaintiff,
v.
JULIO DAVALOS, Individually and as Chair of the Department of Civil Engineering, ANIL AGRAWAL, Individually and as Professor in the Department of Civil Engineering, ALISON CONWAY, Individually and as Professor in the Department of Civil Engineering, VASIL DIYAMANDOGLU, Individually and as Professor in the Department of Civil Engineering, ROBERT PAASWELL, Individually and as Professor in the Department of Civil Engineering, VINCENT BOUDREAU, Individually and as President of CITY COLLEGE OF NEW YORK, and ELIZABETH WITTIG, Individually and as Professor, Chair and Vice Chair of the Department of Civil Engineering, Defendants.

No. 19-CV-3325 (DG) (TAM)

United States District Court, E.D. New York

August 5, 2022

REPORT AND RECOMMENDATION

TARYN A. MERKL, United States Magistrate Judge:

Plaintiff Resat Keles (“Plaintiff”) initiated this action pro se on June 5, 2019, against Defendants Julio Davalos, Anil Agrawal, Alison Conway, Vasil Diyamandoglu, Robert Paaswell, Vincent Boudreau, and Elizabeth Wittig (collectively, “Defendants”).^[1](See Complaint (“Compl.”), ECF No. 1.) Plaintiff, now represented by counsel, alleges that Defendants discriminated and retaliated against him during his four-semester

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tenure as a member of City College of New York's civil engineering department, culminating in Defendants' decision not to reappoint Plaintiff for the fall 2018 academic semester. (See Amended Complaint (“Am. Compl.”), ECF No. 42, ¶¶ 32, 41-130.)^[2]Plaintiff asserts equal protection and due process violations under 42 U.S.C. § 1983 (“§ 1983”), as well as hostile work environment, disparate treatment, and retaliation claims pursuant to the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. (Id. ¶¶ 131-68.) In addition, Plaintiff brings a tortious interference with a prospective economic advantage claim under New York common law. (Id. ¶¶ 169-76.)

Currently pending before the Court is Defendants' motion to dismiss, which the Honorable Diane Gujarati referred to the undersigned Magistrate Judge for a report and recommendation. (Motion to Dismiss (“Mot.”), ECF No. 55; Apr. 26, 2022 ECF Referral Order.) For the reasons set forth below, the Court respectfully recommends that Defendants' motion be granted in part and denied in part.

FACTUALBACKGROUNDANDPROCEDURALHISTORY^[3]

Plaintiff is a septuagenarian scholar and professor, and former employee of City University of New York (“CUNY”) and City College of New York (“City College”). (Am. Compl., ECF No. 42, ¶¶ 6-7, 27-31.) Plaintiff's tenure at City College began in the fall of 2016, when he was hired by CUNY to teach several courses. (Id. ¶ 32.) At the time, Defendant Julio Davalos (“Davalos”) was the chair of the civil engineering

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department (the “Department”) at City College, as well as the chair of the committee tasked with deciding whether to reappoint department faculty (the “Executive Committee”), including Plaintiff. (Id. ¶¶ 11-14, 33.) Defendants Anil Agrawal (“Agrawal”), Alison Conway (“Conway”), Vasil Diyamandoglu (“Diyamandoglu”), and Robert Paaswell (“Paaswell”) were all professors in the Department and were also members of the Executive Committee during the relevant period. (Id. ¶¶ 15-18.) Defendant Vincent Boudreau (“Boudreau”) was the president of City College. (Id. ¶ 19.) Defendant Elizabeth Wittig (“Wittig”) was a professor and member of the Department's academic integrity committee (the “Integrity Committee”), who succeeded Davalos as department chair. (Id. ¶¶ 20-21, 33-34.)

I. Plaintiff's Hiring and Tenure at City College

As noted above, Plaintiff was hired to work at City College beginning in the fall of 2016. (Id. ¶ 35.) Plaintiff alleges that when he was first hired, Davalos represented that it “would not be a temporary appointment but long term employment with [City College],” and that Davalos repeatedly “promised and represented to [Plaintiff] that he would be continuously reappointed[.]” (Id. ¶¶ 36-37.) Plaintiff was indeed reappointed for the spring 2017, fall 2017, and spring 2018 academic terms. (Id. ¶ 41.)

During his roughly eighteen-month employment, Plaintiff claims he was treated differently than his younger colleagues. Specifically, Plaintiff claims that (1) he had larger class sizes; (2) he was asked to take on additional responsibilities, such as “presenting the recitation component” of one of his courses and supervising students' lab work; and (3) he received less help from teaching assistants with grading exams. (Id. ¶¶ 40, 42-61.) Plaintiff further claims that he complained to Davalos about assuming these additional responsibilities but that Davalos refused to take any action, and that Plaintiff was not paid his “full salary” for performing said duties. (Id. ¶¶ 62-64.)

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Plaintiff also alleges that beginning in or about January 2018, Davalos “prohibited” Plaintiff, and only Plaintiff, from attending regularly scheduled departmental meetings. (Id. ¶¶ 70-72.)

In addition, Plaintiff asserts that he discovered students cheating on coursework during the fall 2017 semester and took steps to document such behavior, even though it was not part of his job, and he was not compensated for doing so. (Id. ¶¶ 65-69.) In April 2018, Plaintiff presented his findings to the Integrity Committee, including Wittig and Conway, and the committee reviewed the documentation. (Id. ¶¶ 73-76.) According to Plaintiff, the Integrity Committee concluded that cheating had occurred, and, after initially deciding to take action, reversed course “[a]t the behest and urging of Defendant Wittig . . . with the full knowledge and acquiescence of Defendants Davalos and Boudreau.” (Id. ¶¶ 77-79.) Instead of responding to the students' alleged misconduct, Plaintiff avers that Wittig berated Plaintiff publicly, asserted unsubstantiated allegations about his grading system and availability to meet with students, and harassed him about his use of laser equipment. (Id. ¶¶ 80-83.) Plaintiff claims that he continued to voice objections to the Integrity Committee's inaction but that Defendants “refused to address [his] complaints and concerns.” (Id. ¶¶ 84-86.)

II. Plaintiff's Non-Reappointment for the Fall 2018 Term

Plaintiff alleges that on June 19, 2018, the Executive Committee gathered to decide whether to reappoint Plaintiff for the fall 2018 semester. (Id. ¶¶ 96, 111.) However, in the weeks leading up to that decision, Plaintiff claims that “Davalos repeatedly told [Plaintiff] that he was too old to teach.” (Id. ¶ 103; see also Id. ¶ 112.) In June 2018, Davalos also purportedly told Plaintiff: “you have a history of suing people.”

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(Id. ¶ 108; see also Id. ¶ 113.)^[4] Further, on or about June 19, 2018, the same day that the Executive Committee convened, Davalos allegedly told Plaintiff that he was too old to teach, that he had a history of suing people, and that Defendant Boudreau had emailed Davalos and “directed him to terminate [Plaintiff's] employment.” (Id. ¶¶ 109-13.)

At the meeting, attended by Executive Committee members Davalos, Agrawal, Conway, Diyamandoglu, and Paaswell, the committee denied Plaintiff's reappointment for the fall 2018 semester. (Id. ¶¶ 114-15.) Following that decision, Davalos apparently “stopped by [Plaintiff's] office and again stated that he has a ‘history of suing people,'” and that “the undergraduate dean of [City College] told him to fire [Plaintiff].” (Id. ¶ 118.) A week later, Plaintiff claims that Diyamandoglu told him that the Executive Committee “did as directed by Davalos and that [Plaintiff] could ask for the committee to reconvene and reconsider its decision.” (Id. ¶¶ 119-21.) When Plaintiff asked Davalos to reconvene the committee and reconsider its decision, however, Davalos denied Plaintiff's request. (Id. ¶¶ 122-23.)

Furthermore, Plaintiff claims that the Department, including Davalos, never conducted any performance reviews of Plaintiff, even though City College and CUNY require such reviews each semester and use them to decide whether to reappoint faculty. (Id. ¶¶ 99-102.) Plaintiff also avers that he provided Davalos with teaching records, “including performance reviews from Bronx Community College during

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[Plaintiff's] tenure there as a faculty member,” but that the committee did not consider those documents as part of its decision-making process. (Id. ¶¶ 104-07.)

Following his non-reappointment, Plaintiff lodged complaints “to Defendant Davalos, the office of the Provost, the Integrity Committee, and the Student Senate among other entities within [City College].” (Id. ¶ 126.) In addition, Plaintiff claims that Defendant Boudreau had “the authority to accept or reject” the Executive Committee's decision not to reappoint Plaintiff. (Id. ¶ 127.) However, Plaintiff avers that the “process was corrupted and compromised, as Defendant Boudreau had already decided to ‘fire' [Plaintiff],” and therefore, Boudreau “refused to exercise the authority to rescind and reject the [committee's] decision.” (Id. ¶¶ 128-29.) Plaintiff subsequently filed claims of age discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”) and filed a notice of claim with New York State. (Id. ¶ 130; see also ECF Nos. 36-6, 36-7, 36-8.)^[5]

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III. Procedural History

Plaintiff initiated this action pro se on June 5, 2019.^[6] (See Compl., ECF No. 1.) On February 28, 2020, Plaintiff's counsel filed a notice of appearance. (Notice of Appearance, ECF No. 22.) On April 7, 2021, Judge Gujarati granted Plaintiff's motion for leave to file an amended complaint, which Plaintiff filed on May 12, 2021. (Apr. 7, 2021 ECF Order; Am. Compl., ECF No. 42.) Defendants filed their motion to dismiss on August 13, 2021, and Judge Gujarati heard oral argument on Defendants' motion on March 1, 2022. (See Mot., ECF No. 55; Defs.' Mem. in Supp. of Mot. (“Defs.'...