Starishevsky v. Hofstra University

• Decision Date: 11 April 1994
• Citation: 161 Misc.2d 137,612 N.Y.S.2d 794
• Parties: , 91 Ed. Law Rep. 1078, 10 IER Cases 846 Application of Reuben STARISHEVSKY, for Judgment Pursuant to CPLR Article 78, Petitioner, v. HOFSTRA UNIVERSITY and James M. Shuart, as President of Hofstra University, Respondents.
• Court: New York Supreme Court

Page 794

612 N.Y.S.2d 794

161 Misc.2d 137, 91 Ed. Law Rep. 1078,

10 IER Cases 846

Application of Reuben STARISHEVSKY, for Judgment Pursuant to CPLR Article 78, Petitioner, v. HOFSTRA UNIVERSITY and James M. Shuart, as President of Hofstra University, Respondents.

Supreme Court, Suffolk County Trial Term, Part 28.

April 11, 1994.

Cahn, Wishod & Lamb, Melville, NY (Richard C. Cahn, of counsel), for petitioner.

Orrick, Herrington & Sutcliffe, New York City (Jill L. Rosenberg and Stuart H. Bompey, of counsel), for respondents.

ALAN D. OSHRIN, Justice.

With the recognition of the need to eliminate sexual harassment has come an awareness of how difficult the task will be (Harris v. Forklift Systems Inc., --- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d 295 [1993] concurring opinion of Scalia, J.). The process of eliminating sexual harassment must go forward with recognition of the rights of all involved and without the creation of new wrongs. The process must be propelled by a sense of fairness and not motivated by any other less appropriate notions. Apparently Hofstra University (hereinafter "Hofstra") ignored these precepts when considering the matter of Dr. Starishevsky (hereinafter "Starishevsky") by failing to provide him with a hearing that came close to being fair and accordingly, its actions for the reasons set forth below must be vacated and the petitioner must be reinstated. This failure of process makes it impossible to consider any substantive issue.

The petitioner commenced a CPLR Article 78 proceeding to annul a determination of Hofstra and James S. Shuart (hereinafter "Shuart") as President of Hofstra, which terminated the petitioner's employment effective March 18, 1993.

Starishevsky was employed by Hofstra as a psychologist and as an administrator and faculty member from 1965 until March 18, 1993. At the time of the February 1992 incident (the incident which directly led to this proceeding) and until his discharge Starishevsky was the Director of the Counseling Center. Sharishevsky's employment was of indefinite duration and he served at the pleasure of the board of trustees.

In March of 1992, a Hofstra student, Alison Reutershan (hereinafter "Reutershan") lodged a complaint of sexual harassment with the University's Affirmative Action Office. Reutershan alleged that on February 3, 1992 Starishevsky, the Director of Hofstra's Counseling Center, kissed her on the lips at the end of a counseling session. The University's Affirmative Action Officer, Roland Davis, obtained a written response from Starishevsky, interviewed Reutershan and Starishevsky and concluded that with no witness to the alleged incident, a finding of whether the alleged sexual harassment occurred could not be made. In April of 1992, the Affirmative Action Office considered the case closed.

As the result of Reutershan's pursuing the matter, coverage in the print and televised media, the allegations of Terese Corey Blanck (hereinafter "Blanck") and Holly Seirup (hereinafter "Seirup") ¹ regarding Federal regulations implementing Title IX of the Education Amendments of 1972 provide that any educational institution which receives federal financial assistance for any program or activity must adopt and publish a grievance procedure providing for prompt and equitable resolution of any complaint involving sexual discrimination (see 34 C.F.R. § 106.8[b]; 20 U.S.C. §§ 1681 et seq.). These regulations clearly require the creation of a process that will provide fairness to both the accuser and the accused. No other result could have been intended by the Congress nor permitted by the Office for Civil Rights in Education, the Agency charged with adopting regulations appropriate to the enforcement of the statute.

                1988 incidents the investigation of the Reutershan complaint was reopened.   In a December 23, 1992 Memorandum from Frank Whelan Smith (hereinafter "Smith"), Acting Affirmative Action Officer and M. Patricia Adamski (hereinafter "Adamski"), Vice Dean and Professor of Law to Shuart regarding the investigation, Smith and Adamski summarize their findings and find "just cause" to recommend that the claims against Starishevsky be pursued by an appropriate subcommittee.   It is significant that the Memorandum indicates[161 Misc.2d 140]  that the impetus for investigating the Reutershan claim was the Blanck allegation.   It is also significant that Smith and Adamski find "just cause" to send these allegations (plural) to a subcommittee in accordance with the University's Policy on Sexual Harassment
                

Hofstra receives such assistance and in accordance with this regulation Hofstra's Affirmative Action Office published a pamphlet entitled "Sexual Harassment is Illegal". The pamphlet indicates in pertinent part:

Complaints about sexual harassment will be responded to promptly and equitably. The right to confidentiality of all members of the academic community will be respected in both informal and formal procedures, insofar as is possible ... An individual found to be guilty of sexual harassment is subject to disciplinary action for violations of this policy, consistent with existing procedures.

The pamphlet further indicates if just cause is determined, the complaint will be reviewed by members of the Sexual Harassment Subcommittee; that the Subcommittee will consist of the Provost, Dean of Students, Personnel Director, and a Counseling Center representative; and that if the committee determines that the University's Policy on sexual harassment has been violated, it will [1] pursue steps to effect an informal resolution; or [2] make a recommendation to the Chief Administrative Officer or designate for corrective disciplinary measures or appropriate sanctions regarding the offender.

PRE-HEARING ACTIVITY

The hearing was ultimately scheduled to commence on January 26, 1993. Prior to that time, however, on January 19th Shuart issued a memorandum to the "Hofstra University Community" with respect to the incident and the hearing. In this three page memorandum Shuart discusses an allegation by a student (who is not named) against Starishevsky; fully describes the circumstances of the alleged occurrence; that the initial investigation failed to produce sufficient evidence to warrant any action against Starishevsky; that two women (who are not named) recently came forward to allege similar behavior by Starishevsky in 1988; that the case was reopened as a result of these other alleged occurrences; that a further investigation was conducted by Smith and Adamski, and Smith and Adamski recommended that there was "just cause" for further inquiry. Shuart also identifies the members of the panel and indicates that Starishevsky is on administrative leave with pay, pending a final decision by the president, and sets forth the date for the scheduled inquiry. After a very brief reference to an unrelated matter of alleged gender discrimination, Shuart discusses that the University's Also, prior to the hearing the Smith-Adamski "just cause" memorandum was distributed to the members of the inquiry panel. This was done without discussion with Starishevsky's counsel who thus, had no opportunity to be heard on the appropriateness of disseminating such memorandum. Thus, before hearing the first word of testimony, this panel which was to sit "objectively", had received for review the "just cause" memorandum which indicates that the Reutershan investigation was reopened because of the recent revelation of two alleged similar 1988 incidents, and which commented on the credibility of the statements of Blanck, Seirup and Reutershan, in addition to the memorandum addressed to the entire "Hofstra University Community".

procedures in these matters have been questioned; that the University's policy is to thoroughly investigate both sides of these matters; the University's concern with accuracy, objectivity and that the University will never allow itself to limit the rights of any or all parties involved in such cases.

Thus, before the first day of testimony this inquiry process was tainted by procedural defects and improprieties. The sexual harassment guidelines call for a prompt response to a complaint. The initial response of Hofstra was prompt and resulted in a conclusion, that a finding of sexual harassment could not be made because there were no independent witnesses to the alleged incident, together with the absolute denial by Starishevsky that the case should be closed. Reutershan alleges that Hofstra did not appropriately pursue and investigate her complaint in March of 1992. The record supports this allegation. The lack of attentiveness on the part of Hofstra, however, does not provide a basis to reopen a closed investigation eight months after Starishevsky is advised that it is closed.

The sexual harassment guidelines call for respect for the right of confidentiality for all members of the academic community in informal and formal procedures insofar as possible. Hofstra made no attempt to respect Starishevsky's right to confidentiality. The January 19th memorandum issued by Shuart to the "Hofstra University Community" names Starishevsky but not Reutershan, Blanck or Seirup and makes reference to: the Reutershan incident in detail; the 1988 "similar" incidents; the reopened case; the "just cause" memorandum; Starishevsky's administrative leave with pay, and the scheduled inquiry.

It is significant (as well as perplexing) that Shuart advised the panel members that their inquiry was broader than into the single allegation of sexual harassment; that they were being asked to make a recommendation as to Starishevsky's future employment at Hofstra and that such recommendation need not be based solely on whether a finding of sexual harassment was made. This panel understood it was to weigh all facts and circumstances, including Starishevsky's ability to effectively serve Hofstra and his prior employment record in determining what action, if any, should be...