Milione v. City Univ. of N.Y.

Decision Date21 June 2013
Docket NumberNo. 10 Civ. 5289 (AKH).,10 Civ. 5289 (AKH).
Citation950 F.Supp.2d 704
PartiesVincenzo MILIONE, Plaintiff, v. CITY UNIVERSITY OF NEW YORK, Matthew Goldstein as Chancellor of City University of New York, Queens College, James Muyskens as President of Queens College, The John D. Calandra Italian American Institute, and Anthony Tamburri as Dean of the John D. Calandra Italian American Institute, Defendants.
CourtU.S. District Court — Southern District of New York


Max Di Fabio, Di Fabio & Associates, P.C., White Plains, NY, Stephen Paul Markus, Henry Kyu–Yon Yi, Claudio Debellis, Walsh Markus McDougal & Debellis, LLP, Garden City, NY, for Plaintiff.

Beth L. Kaufman, Alycia Sarah Levy, Schoeman, Updike & Kaufman, LLP, Christine Anne Ryan, Office of New York State Attorney General, New York, NY, for Defendants.



Plaintiff Vincenzo Milione claims he was demoted for promoting Italian–American affirmative action and condemning discrimination against Italian Americans. Plaintiff brings federal, state, and local law claims against three institutions and three leaders of the institutions: the City University of New York (CUNY), CUNY Chancellor Matthew Goldstein (“Goldstein”), Queens College, Queens College President James Muyskens (Muyskens), the John D. Calandra Italian American Institute (Calandra Institute), and Calandra Institute Dean Anthony Tamburri (Tamburri). Plaintiff asserts claims for national origin discrimination, disability discrimination, and retaliation under Title VI, 42 U.S.C. § 2000d, and Title VII, 42 U.S.C. § 2000e, et seq., and claims violations of the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).

Defendants move, after discovery, to dismiss the Calandra institute and Queens College, and Goldstein, Muyskens, and Tamburri (the “Individual Defendants), pursuant to Rule 12(b)(6). Defendants also move for a protective order to bar the deposition of Chancellor Goldstein and for summary judgment pursuant to Rule 56. Argument was heard March 19, 2013. For the reasons stated on the record and below, Defendants' motions are granted.

I. Background

The Calandra Institute of CUNY was created by the New York State legislature in 1979 to foster higher education among Italian Americans. Plaintiff Milione, an Italian American, began working at the Calandra Institute as a research associate in 1987. In 1990, Plaintiff filed a complaint with the Department of Labor after CUNY denied him a promotion at City College. The matter was settled in 1990. Plaintiff's supervisor, Dr. Joseph Scelsa (“Scelsa”) also sued CUNY, claiming it discriminated against Italian Americans, and Plaintiff testified in support of Scelsa's claims. A settlement was reached in 1994, providing for the Calandra Institute to be integrated into Queens College, a CUNY senior college. In 1995, Plaintiff became “Director for Research and Education” at the Calandra Institute, overseeing researchrelated to CUNY's compliance with its Italian–American affirmative action programs.

In March 2006, CUNY named Anthony Tamburri the new Dean of the Calandra Institute. At the time of his appointment, Tamburri wrote to President Muyskens suggesting that various personnel changes may be needed at the Calandra Institute, including altering Plaintiff's title. Tamburri Decl. Ex. A. In June 2006, Plaintiff gave a presentation to the New York Conference of Italian–American State Legislators critical of CUNY's Italian–American affirmative action programs and CUNY's progress in eliminating discrimination against Italian Americans. Plaintiff presented a similarly critical report to the CUNY chancellor's office in October 2006. Plaintiff claims that after these presentations, Tamburri instructed him not to publicly present his research findings without Tamburri's prior approval. In a letter dated August 7, 2007, Tamburri changed Plaintiff's job title and description, naming him “Director of Demographic Studies.” Id. Ex. C. Plaintiff's salary and benefits were not affected, but Plaintiff claims he was stripped of his staff and forced to abandon his research on Italian–American affirmative action. Plaintiff alleges that this effectively demoted him, in retaliation for his 1990 complaint to the Labor Department, his 1992 testimony in the Scelsa lawsuit, and his activities in support of Italian–American affirmative action. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission on January 10, 2008. A Notice of Right to Sue was issued April 15, 2010, and Plaintiff brought this cause of action on July 12, 2010.

II. Defendants' Motion to Dismiss the Calandra Institute, Queens College, and the Individual Defendants

To survive Defendants' Rule 12(b)(6) motion to dismiss, 1 Plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court must “assume[ ] the truth of all factual allegations contained in the complaint and draw[ ] all inferences in the plaintiff's favor.” Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 409 (2d Cir.2000).

Defendants argue that Plaintiff cannot sue the Calandra Institute or Queens College as legally cognizable entities separate from CUNY. This is correct. SeeN.Y. Educ. Law §§ 6202(2); Salerno v. CUNY, 2000 WL 1277324, *3 (S.D.N.Y. Sept. 8, 2000), vacated, in part, on other grounds,2002 WL 31856953 (S.D.N.Y. Dec. 19, 2001). Plaintiff did not challenge this position in either his briefing or during oral argument. Plaintiff's claims against the Calandra Institute and Queens College are therefore dismissed.

Defendants next argue that Plaintiff cannot sue the Individual Defendants under Title VI or Title VII. Again, Defendants are correct. The proper defendant in a Title VI action “is the entity that receives federal financial assistance, not an individual.” Kelly v. Rice, 375 F.Supp.2d 203, 208 (S.D.N.Y.2005); Bayon v. State Univ. of New York at Buffalo, 2001 WL 135817, *2 (W.D.N.Y. Feb. 15, 2001) (plaintiff's Title VI claims against the individual defendants in their individualcapacities fail because this act does not provide for individual liability”). Individuals are also not liable in either their individual or official capacities under Title VII. Jones v. Consumer Info. Dispute Resolution, 2007 WL 2398811 (S.D.N.Y. Aug. 16, 2007); McBride v. Routh, 51 F.Supp.2d 153, 157 (D.Conn.1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1313–14 (2d Cir.1995) (“individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII) (“the statutory scheme and remedial provisions of Title VII indicate that Congress intended to limit liability to employer-entities with fifteen or more employees”). Plaintiff's federal claims against the Individual Defendants are therefore dismissed. Furthermore, the dismissal of Plaintiff's remaining federal claims, discussed below, deprives this Court of supplementary jurisdiction to hear Plaintiff's state and local claims against the Individual Defendants. 28 U.S.C. § 1367.

Defendants' motion to dismiss Queens College, the Calandra Institute, and the Individual Defendants is granted. Plaintiff's claims against CUNY, the sole remaining Defendant, are discussed below.

III. Defendants' Motion for Summary Judgment for CUNY

Summary judgment is appropriate where the evidentiary record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see alsoFed.R.Civ.P. 56(c). A genuine issue of material fact exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must “view the evidence in the light most favorable to the party opposing summary judgment, ... draw all reasonable inferences in favor of that party, and ... eschew credibility assessments.” Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir.2004). However, the non-moving party may not rely on conclusory allegations or unsubstantiated speculation to defeat the summary judgment motion. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Although district courts should be cautious of granting summary judgment in employment discrimination cases “where the employer's intent, motivation, or state of mind is [the material fact] at issue,” Balut v. Loral Elec. Sys., 988 F.Supp. 339, 343 (S.D.N.Y.1997), the remedy remains available in appropriate cases.

a. Plaintiff's Title VI Claims

Plaintiff alleges that CUNY retaliated and discriminated against him on the basis of his national origin. Title VI provides, “No person ... shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 42 U.S.C. § 2000d. However, “for a claimant to recover under Title VI against an employer for discriminatory employment practices, a threshold requirement is that the employer be toe recipient of federal funds aimed primarily at providing employment. Ass'n Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2d Cir.1981) (emphasis added). Plaintiff must allege a “logical nexus” between the federally funded program and the employment discrimination suffered. Commodari v. Long Isl. Univ., 89 F.Supp.2d 353, 378 (E.D.N.Y.2000). In this case, Plaintiff fails to allege or prove that the federal funds received by CUNY were “aimed primarily at providing employment.” Plaintiffs job at the Calandra Institute was not federally funded, and Plaintiff does not challenge Defendan...

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