Marks v. New York University
| Decision Date | 31 August 1999 |
| Docket Number | No. 98 CIV. 0439(RPP).,98 CIV. 0439(RPP). |
| Parties | Janet R. MARKS Plaintiff, v. NEW YORK UNIVERSITY and George G. Daly, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Jacobs, DeBrauwere & Dehn, LLP, New York City, by Francis X. Dehn, for Plaintiff.
Anderson Kill & Olick, P.C., New York City, by Dona S. Kahn, Mededith Fein Lichtenberg, for Defendants.
This case involves employment related disputes between plaintiff Janet R. Marks ("Marks") and her former employer, New York University ("NYU").1 Plaintiff alleges breach of an employment contract and a separation agreement, unlawful eviction from NYU-owned housing and discrimination in the compensation, terms and conditions of her employment on the basis of age and sex in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the "NYSHRL").2 NYU has moved for summary judgment on all of plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons which follow, defendant's motion is granted in its entirety and plaintiff's complaint is dismissed.
Due to plaintiff's failure to file a statement of disputed material facts pursuant to Local Rule 56.1, the facts set out in NYU's Rule 56.1 Statement are deemed admitted. See Civil Rule 56.1(c), Local Rules of the United States District Courts for the Southern and Eastern Districts of New York; see also Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998).3 The undisputed facts of the case, drawn verbatim from NYU's Rule 56.1 Statement, are as follows:
Background
1. Plaintiff Janet R. Marks ("Marks") was employed at NYU's Stern School of Business ("Stern") from the fall of 1971 until December, 1996. See Verified Complaint, filed January 22, 1998, ("Complaint") ¶ 8, Exh. 1 to the Affidavit of Donna S. Kahn, Esq., ("Kahn Aff."); Answer and Counterclaim, March 10, 1998 ("Answer"), ¶ 8, Exh. 2 to the Kahn Aff.
2. As of August, 1993, when Daly became the Dean of the Stern School, Marks was Associate Dean for MBA Education. See Complaint ¶ 8; Deposition of Janet R. Marks, dated September 10, 1998 & January 11, 1999 ("Marks dep."), at 43, Exh. 3 to the Kahn Aff.; Deposition of George G. Daly, dated November 12, 1998 & February 17, 1999 ("Daly dep.") at 6, 15, Exh. 4 to the Kahn Aff.
3. As of September 1, 1995, Marks was appointed as an Associate Clinical Professor at Stern. See Letter from L. Jay Oliva to J. Marks, April 19, 1996, Exh. 5 to the Kahn Aff; Daly dep., at 72. Her appointment letter specified that she was to perform "[f]ull time" duties as a Associate Clinical Professor for a term ending January 14, 1999. See id. No tenure implications were attached to the position. See id.
4. That letter also provided for a secondary appointment as Associate Dean for International Programs and MBA Initiatives, a new position, created for plaintiff. See id.; Daly dep., at 74.
5. Under this dual appointment, $95,500 — approximately 90% of Marks' annual salary — was attributable to her duties as an Associate Clinical Professor, and the remainder, $10,611, was payment for her duties as Associate Dean. See Kahn Aff., Exh. 5.
6. Marks held both positions until the Associate Deanship was eliminated in September, 1996. See Letter from T. Pugel to J. Marks, August 28, 1996, Exh. 6 to the Kahn Aff.
7. Thereafter, until November 30, 1996, Marks was paid as a full time Associate Clinical Professor at Stern, at a rate of $95,500 annually. See NYU "Change Primary" Form, Kahn Aff., Exh. 27.
8. Marks was informed in July, 1996 that her Associate Deanship would be eliminated in September, 1996, but she would remain a full time faculty member. See Exh. 6 to the Kahn Aff.; Marks dep., at 97-98.
9. Marks approached Daly in late August or early September, 1996, seeking to negotiate a separation package for herself, informing Daly that she had decided she would like to leave NYU. See Marks dep., at 249.
10. NYU does not routinely provide severance payments to employees who depart voluntarily. See Daly dep. at 123-24; NYU Admin. and Prof'l Handbook at 21, Exh. 7 to the Kahn Aff.
11. NYU offered Marks a separation agreement to Marks on October 8, 1996. (The "October 8 Offer"). See Exh. 12 to the Kahn Aff; Complaint ¶ 21.
12. By its terms, the October 8 Offer was not irrevocable, nor did it contain consideration for an option contract. See Exh. 12 to the Kahn Aff.
13. The October 8 Offer provided for severance pay and retirement benefits and specified that, in return for valuable consideration, Marks released NYU from all future claims she might have "under the Age Discrimination in Employment Act or any other federal, state, local or other law...." See Exh. 12 to the Kahn Aff., at ¶¶ 3,4,6,7.
14. The October 8 Offer provided that Marks could consider the Release for 21 days. See id. at ¶ 5.
15. Marks had been offered a full time position at Fordham University Business School, a competitor of NYU, in June of 1996. See Marks dep. ex. 3, Kahn Aff., Exh. 8; Deposition of Ernest L. Scalberg, dated February 11, 1999 ("Scalberg dep."), at 29 (), Exh. 9 to the Kahn Aff.
16. Marks had begun to work at Fordham in July, 1996, in preparation for the "full time" position Fordham had offered her, slated to begin on October 1, 1996. See Marks dep. ex. 5, Kahn Aff. Exh. 10; (appointment letter dated August 1, 1996); Fordham Record of Hiring Report, July 30, 1996, Exh. 11 to the Kahn Aff.
17. Marks was paid an annual salary of $102,000 from Fordham University as of October 1, 1996. See Marks' Fordham appointment as Associate Dean, Kahn Aff., Exh. 22; Marks' Fordham offer of Associate Professorship, Kahn Aff., Exh. 23; Acceptance and Payroll Deduction Form, Kahn Aff., Exh. 24; Personnel Action Form, Kahn Aff., Exh. 25; Personnel Record Card, Kahn Aff., Exh. 26.
18. Marks was paid $20,000 at a rate of $75/hour for her work at Fordham during August and September, 1996. See Scalberg dep., at 67-70.
19. In response to the October 8 Offer, Marks sent a revised proposed agreement to NYU on October 23, 1996, see Exh. 13 to the Kahn Aff, which altered several of the existing provisions of the October 8 Offer, providing that: (1) Marks would be allowed to work for NYU in the future; (2) Records would reflect that Marks left employment at NYU for "early retirement," rather than resignation; (3) Marks' retirement would be effective December 31, 1996 rather than October 7, 1996, providing approximately three months additional salary; (4) Severance would be paid, and benefits afforded, at a different time than originally specified. See Kahn Aff., Exh. 13, at ¶¶ 1, 6, 10 20. Marks' revision also provided the following new terms: (1) NYU would provide Marks with a "most favorable" letter of reference, which she would draft, and had a continuing obligation to speak favorably of Marks; (2) NYU would release any and all claims against Marks; (3) Marks and NYU would mutually agree not to engage in any disparaging remarks about each other; (4) Marks would be entitled to remain in NYU-owned housing. See Exh. 13 to the Kahn Aff., at ¶¶ 7,8,9,11.
21. While waiting for Marks to sign the October 8 Offer, Daly learned from one of NYU's faculty members that he was told Marks was employed by Fordham University. See Daly dep., at 146.
22. Thereafter, on October 28, 1996, Daly informed Marks that NYU's October 8 Offer was revoked, and requested that she report for duty at NYU. See Complaint ¶ 22; Letter from G. Daly to J. Marks, October 28, 1996, Exh. 14 to the Kahn Aff.
23. Marks did not report for duty at NYU; instead, she signed and returned the October 8 Offer. See Complaint ¶ 22; Letter from J. Marks to G. Daly, October 29, 1996, Exh. 15 to the Kahn Aff.
24. Daly then informed Marks that, since NYU had revoked its offer, he did not consider her signature on the October 8 Offer to be effective. See Complaint ¶ 22; Letter from G. Daly to J. Marks, October 31, 1996, Exh. 16 to the Kahn Aff.
25. Marks sent a letter demanding that NYU perform the terms of the October 8 Offer. See Letter from M. Pollet esq. to A. Schaffer, November 13, 1996, Exh. 17 to the Kahn Aff.
26. On December 3, she wrote to Thomas Pugel ("Pugel"), Vice Dean of the Stern School, informing NYU that she was working full time at Fordham University. See Exh. 18 to the Kahn Aff.
27. NYU's Faculty Handbook, which governs faculty throughout NYU, restricts outside employment to one day per week. Faculty Handbook at 60-61, Exh. 20 to the Kahn Aff.
28. This policy applies equally to all faculty members, even to those who are not teaching during a particular term. See Stern School Policies and Procedures Pertaining to Faculty at 13, Exh. 21 to the Kahn Aff.
29. NYU Rules also specifically state that "it is expected that a faculty member would normally consult his or her dean" in a situation in which he or she would be "employed by another academic institution other than while on leave of absence from the University." Exh. 20 to the Kahn Aff. at 115-C.
30. The policy recognizes that faculty members have many duties outside the classroom, see id., and seeks to assure a sustained level of commitment to those duties, and to the NYU community, even during non-teaching periods. See Affidavit of George G. Daly, ("Daly Aff.") at ¶ 2. It also protects NYU from...
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