Rehman v. State Univ. of N.Y. at Stony Brook (Full Text)

MEMORANDUM OF
DECISION AND ORDER
08CV0326 (ADS)(MLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
—————————————————-X
JAMIL REHMAN, M.D.,

Plaintiff,

-against-

THE STATE UNIVERSITY OF NEW YORK AT
STONY BROOK; STONY BROOK UNIVERSITY
SCHOOL OF MEDICINE; STONY BROOK
UNIVERSITY MEDICAL CENTER; SHIRLEY
STRUM KENNY, Ph.D. individually and in her
official capacity as President of the State University
of New York at Stony Brook; RICHARD FINE,
M.D., individually and in his official capacity as
Dean of the School of Medicine at SUNY Stony
Brook; and WAYNE WALTZER, M.D.,
individually and in his official capacity as Chair of
the Department of Urology at the State University
of New York at Stony Brook,

Defendants.
—————————————————–X

APPEARANCES:

BELDOCK LEVINE & HOFFMAN LLP
Attorneys for the plaintiff
99 Park Avenue, Suite 1600
New York , NY 10016
Cynthia Rollings, Esq.
By:
Rachel Miriam Kleinman, Esq., Of Counsel

ANDREW M. CUOMO
ATTORNEY GENERAL OF THE STATE OF NEW YORK
Attorney for the defendants
200 Old Country Road, Suite 460
Mineola , NY 11501
By;
Toni E. Logue, Assistant Attorney General

SPATT, District J.

BACKGROUND

The following facts are derived from the parties’ pleadings. On this motion,

the Court also considers documents incorporated by reference in the complaint.

Nechis v. Oxford Health Plans Inc., 421 F.3d 96, 100 (2d Cir.2005) (noting that on a

12(b)(6) motion to dismiss, the Court must limits its “consideration to facts stated in

the complaint or documents attached to the complaint as exhibits or incorporated by

reference”).

The plaintiff, Jamil Rehman, M.D. (“Rehman”), is a Board Certified urologist

licensed to practice in the State of New York. At the time of filing of the present

action, the plaintiff was 51 years of age, is a Pakistani-American, and a practicing

Muslim. The individual defendants are Shirley Strum Kenny, the President of the

State University of New York, Stony Brook (SUNY Stony Brook); Richard Fine,

M.D., Dean of the School of Medicine at SUNY Stony Brook; and Wayne Waltzer,

M.D., the Chair of the Department of Urology of the SUNY Stony Brook School of

Medicine.

The plaintiff alleges that in August of 2002, he was offered a teaching position

as Assistant Professor in the Department of Urology in the School of Medicine at

SUNY Stony Brook, a non-tenured year to year position based upon a written

agreement. The plaintiff contends that at the time he was recruited, he was told by Dr.

Waltzer that all Assistant Professors received the standard year to year appointment,

but that Dr. Waltzer would recommend the plaintiff for promotion to Associate

Professor after he commenced employment; that he would be “fast tracked” to a

tenure track position; and that his salary would be increased shortly after his

employment began. The plaintiff further contends that he was informed by Dr.

Waltzer that he would be furnished with sufficient non-clinical time to pursue research

activities as well as time to develop two programs for the University: the laparoscopic

surgery/oncology program and the laparoscopic live donor nephrectomy program.

The plaintiff contends that in addition to spearheading the two laparoscopic

surgery programs, he alone enhanced the standard of care at the Stony Brook Medical

Center by performing and teaching advanced surgical procedures; advocated for the

development of a robotic surgery program; and encouraged community urologists to

bring their cases to the Stony Brook Medical Center, which improved the training

available to the institution’s residents. Further, the plaintiff contends that he was

complimented by Dr. Waltzer for his contributions to the department in a memo dated

February 15, 2005 and received the Resident Teaching and Attending of the Year

Award in 2006.

Despite the positive feedback of the plaintiff’s work, he states that Dr. Waltzer

refused to propose the plaintiff for appointment to Associate or Full Professor with

tenure, contrary to his promise and despite the plaintiff’s requests. In addition, the

plaintiff contends that he received only one salary increase during his time at SUNY

Stony Brook and that another physician hired by the Urology Department after the

plaintiff, who was less qualified, but non-Asian and non-Muslim, was treated more

favorably than the plaintiff in terms of pay and promotion opportunities. Further, the

plaintiff alleges that when he requested leave time to pursue educational and research

opportunities, he was forced to do so without pay and without health benefits. The

plaintiff contends, however, that his non-minority counterpart was offered paid leave

to pursue an MBA education.

The plaintiff also contends that defendant Waltzer assigned him to the urology

resident clinic for three years, more than any other attending physician in the

Department, requiring long hours and adversely affecting the plaintiff’s income as

reimbursement for clinic patients is less than other patients. The plaintiff alleges that

his research activities have been denied financial support and his ability to perform

laparoscopic live-donor nephrectomy and his access to the Cancer Center were

blocked by Dr. Waltzer. Further, the plaintiff alleges that his surgeries were disrupted

at the direction of Dr. Waltzer. The plaintiff contends that Dr. Waltzer referred to his

race and religion as reasons for this treatment.

The plaintiff states that he protested and submitted oral and written complaints

about this discriminatory treatment. On January 20, 2005, the plaintiff wrote to Dr.

Waltzer protesting the discrepancy in his salary compared to other new hires in the

Department. Further, in or about September 2005, the plaintiff protested Dr.

Waltzer’s unfair treatment to Dr. Norman Edelman, the then Dean of the Medical

School.

The plaintiff was later informed that Dr. Edelman had spoken to Dr. Waltzer,

who would be collecting and submitting the plaintiff’s materials for submission to the

Faculty Appointment, Promotion, and Tenure Committee. However, the plaintiff

contends that no collection, submission or promotion materialized. On October 1,

2003, the plaintiff sent an e-mail message to several faculty members complaining of

Dr. Waltzer’s failure to submit the materials for plaintiff’s promotion and requesting

assistance.

On August 30, 2006, the plaintiff wrote a letter to Shirley Strum Kenny,

President of SUNY Stony Brook, protesting the discriminatory acts and practices of

Dr. Waltzer, and also detailing what he believed to be inappropriate billing practices

within the Department, as well as perceived HIPPA violations and violations of the

“Patients’ Bill of Rights.” In addition, the plaintiff contends that he was outspoken

about these disturbing practices, and other patient safety issues, such as the disruption

of the plaintiff’s surgeries, the withholding of instruments from the plaintiff during his

surgeries, and the knowing falsification of the credentials of certain department

members.

The plaintiff contends that as a result of his protests, he suffered retaliation. In

addition to the continuation of the disparate treatment that the plaintiff had previously

complained about, he alleges that equipment that he was awarded pursuant to a state

grant was removed from his laboratory by Dr. Waltzer and relocated to the operating

room, so that the plaintiff could no longer use it to pursue his research. Thereafter,

Dr. Waltzer failed to acknowledge the plaintiff in urology conferences, he continued

to block the plaintiff from participating in the donor nephrectomy program and the

Cancer Center, the disruption of his surgeries continued, and the plaintiff was

excluded from the professional activities of the Urology Department.

On March 30, 2007, Dr. Waltzer submitted an unfavorable performance

evaluation of the plaintiff, which the plaintiff contends included false allegations, and

in which Dr. Waltzer recommended that the plaintiff’s year to year employment not be

renewed. Finally, on April 4, 2007, the plaintiff received a letter of non-renewal of his

appointment from Dr. Fine. The letter stated that the plaintiff’s appointment was

initially renewed from August 1, 2003 to July 31, 2007 and that he would be given an

additional appointment from August 1, 2007 to April 9, 2008, but that his appointment

would not be renewed beyond that point. (Defendant’s Exh. B). On April 13, 2007,

following the receipt of the letter, the plaintiff filed a claim with the Equal

Opportunity Employment Commission (“EEOC”), complaining of discrimination and

retaliation by the defendants. The plaintiff contends that Dr. Waltzer’s retaliatory

behavior intensified following his complaint to the EEOC.

The plaintiff filed the present action on January 23, 2008, presenting the

following twelve causes of action:

• Count I:

• Count II:

• Count V:

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. (“Title VII”), against all defendants for discrimination on
the basis of race, color, religion and/or ethnic origin;
New York State Human Rights Law (“NYSHRL”), Executive
Law § 296(1)(a) against all defendants for discrimination on the
basis of race, creed, color, or national origin;
• Count III:
Title VII against all defendants for retaliation;
• Count IV: New York State Human Rights Law, Executive Law § 296(7)
against all defendants for retaliation;
42 U.S.C. § 1981 against all defendants for discrimination on
the basis of race and religion;
• Count VI: Age discrimination against all defendants in violation of 29
U.S.C. § 621, et seq., and the New York State Human Rights
Law;
42 U.S.C. § 1983, violation of the Equal Protection guarantees
of the Fourteenth Amendment to the United States Constitution
on the basis of race, color, religion and/or ethnic origin against
all defendants;
• Count VIII: Violation of the Equal Protection guarantees under the New
York Constitution on the basis of race, color, religion and/or
ethnic origin against all defendants;
42 U.S.C. § 1983, violation of the plaintiff’s First Amendment
rights as against all defendants;
42 U.S.C. § 1983, violation of the Due Process clause of the
Fourteenth Amendment to the United States Constitution;
Breach of Contract, including the covenant of good faith and
fair dealing; and
Waste of state assets.

• Count XII:

• Count VII:

• Count IX:

• Count X:

• Count XI:

On March 18, 2008, the defendants filed the present Fed. R. Civ. P. 12(b)(6)

motion to dismiss the complaint. In his opposition, the plaintiff stipulated to

dismissal, without prejudice of the following: (1) his claims for damages against the

New York State defendants SUNY Stony Brook, Stony Brook School of Medicine,

and Stony Brook Medical Center, for age discrimination in violation of the ADEA; (2)

his § 1981 and § 1983 claims for damages against the New York State defendants and

the individual defendants in their official capacities; (3) his state law claim for

retaliation against the New York State defendants; (4) his state law claim for breach of

contract against the New York State defendants; (5) his state law claim for waste

against the New York state defendants; (6) his Title VII claims for discrimination

against the individual defendants; and (7) his Title VII claim for discrimination

against the SUNY School of Medicine. The plaintiff opposed the defendants’ motion

to dismiss in all other respects.

II.

DISCUSSION

At the pleading stage of litigation, the plaintiff need only provide a “‘short and

plain statement’” that “‘give[s] the defendant fair notice of what the plaintiff’s claim is

and the grounds upon which it rests.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506,

512–13, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (citing Conley v. Gibson, 355 U.S. 41,

47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957)); see also Fed. R. Civ. P. 8(a)(2). This

notice pleading standard expects “liberal discovery rules and summary judgment

motions to define disputed facts and issues to dispose of unmeritorious claims.”

Swierkiewicz, 534 U.S. at 512, 122 S. Ct. 992, 152 L. Ed. 2d 1.

In considering a 12(b)(6) motion to dismiss, “‘[t]he issue is not whether a

plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to

support the claims.’” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (quoting

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)). In this

regard, the Court must “accept all of the plaintiff’s factual allegations in the complaint

as true and draw inferences from those allegations in the light most favorable to the

plaintiff.” Starr v. Georgeson S’holder, Inc., 412 F.3d 103, 109 (2d Cir. 2005);

Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999).

Further, a complaint should be dismissed only if it does not contain enough

allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). According to the

Second Circuit, in Twombly, “the Supreme Court held that a complaint must allege

facts that are not merely consistent with the conclusion that the defendant violated the

law, but which actively and plausibly suggest that conclusion.” Port Dock & Stone

Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007). Indeed, the

Twombly Court noted that “[f]actual allegations must be enough to raise a right to

relief above the speculative level on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Twombly, 127 S. Ct. at 1965 (internal

citations omitted).

Significantly, the Supreme Court has specifically stated that “a complaint in an

employment discrimination lawsuit [need] not contain specific facts establishing a

prima facie case of discrimination under the framework set forth in McDonnell

Douglas . . . .” Swierkiewicz, 534 U.S. at 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (internal

citation omitted). Instead, in order to survive a motion to dismiss, the plaintiff’s

complaint need only include “a short and plain statement of the claim showing that the

pleader is entitled to relief” as required by Fed. R. Civ. P. 8(a)(2), amplified by

sufficient factual allegations to satisfy the plausibility standard set forth in Twombly,

“in those contexts where such amplification is needed to render the claim plausible.”

Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d Cir. 2007).

Statutes of Limitation

The defendants assert that the plaintiff’s claims pursuant to Title VII based

upon actions arising prior to June 16, 2006 and pursuant to NYSHRL §§ 290, et seq.,

prior to January 28, 2005 are barred by the applicable statute of limitations. Pursuant

to Title VII, a charge of discrimination must be filed with the Equal Employment

Opportunity Commission (“EEOC”) within 180-days of any alleged unlawful

employment practice or 300-days where there is a State or local agency with authority

to grant or seek relief from such practice. 42 U.S.C. § 2000e-5(e)(1). Because New

York has its own anti-discrimination laws and enforcement agency, the statute of

limitations for filing a charge of discrimination with the EEOC is 300-days after the

alleged occurrence of an unlawful employment practice. Id.; Harris v. City of New

York, 186 F.3d 243, 247 n.2 (2d Cir. 1999). Failure to timely file a charge with the

EEOC renders the subject claim time-barred, preventing a claimant from bringing her

claim in federal court. Elmenayer v. ABF Freight System, Inc., 318 F.3d 130 (2d Cir.

2003); Starr v. Time Warner, Inc., No. 07CV5871, 2007 WL 4144627, at *3

(S.D.N.Y. Nov. 21, 2007). In addition, the NYSHRL provides for a three year statute

of limitations. New York Exec. Law. §§ 290, et seq.

With respect to the limitations period, the Supreme Court has differentiated

between claims of discrete discriminatory acts and claims of hostile work

environment. “Discrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges” and “each discrete

discriminatory act starts a new clock for filing charges alleging that act.” National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d

106 (2002). It is well-settled that certain adverse employment practices such as the

failure to promote, failure to compensate adequately, undesirable work transfers, and

denial of preferred job assignments are discrete acts. Mix v. Delaware and Hudson

Ry. Co., 345 F.3d 82, 89 (2d Cir. 2003). In such cases, “each incident of

discrimination and each retaliatory adverse employment decision constitutes a

separate actionable unlawful employment practice.” Morgan, 536 U.S. at 114, 122 S.

Ct. 2061, 153 L. Ed. 2d 106.

Here, the plaintiff has no right to recover damages based upon discrete acts of

discrimination occurring prior to June 16, 2006 under Title VII or prior to January 28,

2005, under the NYSHRL respectively. However, events occurring prior to these

dates may be considered in the context of his hostile work environment claim.

Further, the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 2009 S.

181 (2009), with a retroactive effective date of May 28, 2007, altered the limitations

period to be applied in wage discrimination cases. The Act provides that: (1) “an

unlawful employment practice occurs, with respect to discrimination in compensation

in violation of this title, when a discriminatory compensation decision or other

practice is adopted, when an individual becomes subject to a discriminatory

compensation decision or other practice, or when an individual is affected by

application of a discriminatory compensation decision or other practice, including

each time wages, benefits, or other compensation is paid . . . .”; and (2) “liability may

accrue and an aggrieved person may obtain relief . . . including recovery of back pay

for up to two years preceding the filing of the charge, where the unlawful employment

practices that have occurred during the charge filing period are similar or related to

unlawful employment practices with regard to discrimination in compensation that

occurred outside the time for filing a charge.” According to the terms of the Act, the

plaintiff’s wage discrimination claims based upon actions occurring on or after April

13, 2005, two years prior to his EEOC charge, are timely.

As to the Plaintiff’s Claims of Age Discrimination (Count VI)

As noted above, the plaintiff has stipulated to the dismissal of his age

discrimination claims under the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. §§ 621 et seq. as to the New York State defendants insofar as those claims

seek monetary damages. However, the plaintiff contends that he can maintain a cause

of action pursuant to the ADEA for injunctive relief against all defendants and for

damages against the individual defendants. Although not specifically ruled on by the

Second Circuit, it is clear that the plaintiff may not maintain ADEA claims against the

individual defendants, and liability with respect to the individual defendants can only

obtain pursuant to the NYSHRL. See Hogan v. J.P. Morgan Chase Bank, No.

05CV5342, 2008 WL 4185875 (E.D.N.Y. Sept. 4, 2008) (“The law is clear that an age

discrimination claim brought pursuant to the ADEA cannot lie against an

individual.”); see also Falbaum v. Pomerantz, 19 Fed. Appx. 10 (2d Cir. 2001)

(expressing doubt as to whether ADEA claims could be applied to individual

defendants).

Like other discrimination claims, to establish a prima facie case of age

discrimination, the plaintiff must show that he is a member of a protected class; he

was qualified for his position; he suffered an adverse employment action; and

circumstances exist that support an inference of age discrimination. Kassner v. 2nd

Avenue Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007). However, as noted

above, at the motion to dismiss stage, “plaintiffs need not plead a prima facie case and

may withstand a motion to dismiss by meeting a lesser standard. Plaintiffs need only

comply with Rule 8(a)(2) by providing a short and plain statement of the claim that

shows that plaintiffs are entitled to relief and that gives the defendants fair notice of

plaintiffs’ claims of age discrimination and the grounds upon which those claims rest.”

Id. at 238. In addition, claims pursuant to the NYSHRL are subject to the same

analysis as claims brought pursuant to the ADEA. Abdu-Brisson v. Delta Air Lines,

Inc., 239 F.3d 456, 466 (2d Cir. 2001). Here, the plaintiff has failed to meet even this

liberal pleading standard.

First, aside from alleging that he was age 51 at the time his employment was

terminated, the plaintiff has not made a single allegation that his termination or the

alleged disparate treatment was related to his age. The plaintiff fails to allege that the

counterparts who allegedly received better treatment were younger than the plaintiff,

including the subsequently hired and allegedly less-qualified comparator referred to in

paragraph 34 of the plaintiff’s complaint. Accordingly, the plaintiff’s claims for age

discrimination under the ADEA and NYSHRL § 296(7) are dismissed without

prejudice and with leave to amend.

As to the Plaintiff’s Claims Pursuant to Title VII (Counts I and III)

The plaintiff has stipulated to the dismissal of his Title VII claims against the

individual defendants in their individual capacities and against the SUNY School of

Medicine because he did not include that entity in his EEOC complaint.

The defendants contend that the plaintiff fails to state a claim for retaliation

because (1) the majority of the wrongdoing alleged by the plaintiff occurred prior to

his complaints and merely continued after the complaints; (2) the actions allegedly

taken in retaliation do not rise to the level of cognizable adverse employment actions;

and (3) the poor evaluation received on March 30, 2007 and the later notice of non-

renewal in April 2007 are too attenuated in time from the plaintiff’s last complaint in

August 30, 2006 to support a claim for retaliation.

In order to establish a claim for retaliation, a plaintiff must show that: (1) he

engaged in a protected activity; (2) his employer was aware of this activity; (3) he

suffered an adverse employment action; and (4) a causal connection exists between

the alleged adverse action and the protected activity. Schiano v. Quality Payroll

Systems, Inc., 445 F.3d 597, 608 (2d Cir. 2006). In Burlington Northern & Santa Fe

Ry. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the Supreme

Court held that the anti-retaliation provision of Title VII, unlike its substantive

provision, is not limited to discriminatory actions that affect the terms and conditions

of the plaintiff’s employment. White, 548 U.S. at 68, 126 S.Ct. 2405, 165 L.Ed.2d

345. Instead, “[t]o prevail on a claim for retaliation under Title VII, ‘a plaintiff must

show that a reasonable employee would have found the challenged action materially

adverse, which . . . means it well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.’” Kessler v. Westchester County

Dept. of Social Services, 461 F.3d 199, 207 (2d Cir. 2006) (quoting White, 548 U.S. at

68, 126 S.Ct. 2405, 165 L.Ed.2d 345). Accordingly, pursuant to the Court’s decision

in White, a plaintiff need only show that his employer took an action that a reasonable

employee would find to be materially adverse. The action need not affect the terms of

employment

The Court finds that the plaintiff has sufficiently alleged adverse actions in

response to his complaints. The plaintiff contends that following his complaints,

certain equipment awarded to him pursuant to a grant was removed from his

laboratory at the direction of Dr. Waltzer. Further, the plaintiff contends that he was

ignored by Dr. Waltzer at professional meetings and excluded from professional

activities, such as interviewing faculty and residents. Finally, the plaintiff contends

that he was disrupted during surgery and denied proper equipment, facilities, and

assistance during his surgical procedures in retaliation for his complaints.

Such actions, if true, might well have dissuaded Rehman’s complaints for fear

that his ability to carry out his professional duties would be compromised. Deshpande

v. Medisys Health Network, Inc., No. 07CV0375, 2008 WL 2004160, at *5 (E.D.N.Y.

May 07, 2008) (finding that physician stated a claim for retaliation where he alleged

that the monitoring to which he was subjected and a one-year-rather than a

two-year-renewal of his hospital privileges were selectively applied only to him and

not to other similarly situated physicians following complaints of discrimination).

Further, although occurring approximately eight months after Dr. Rehman’s

last complaint concerning Dr. Waltzer’s behavior, it is undisputed that the very next

evaluation of the plaintiff’s performance was poor and contributed to the non-renewal

of his employment agreement. Despite the defendant’s contentions, there is no “bright

line to define the outer limits beyond which a temporal relationship is too attenuated

to establish a causal relationship between the exercise of a federal constitutional right

and an allegedly retaliatory action.” Gorman-Bakos v. Cornell Co-op Extension of

Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001). In Deshpande, the Court

declined to find that five months between the plaintiff’s protected actions and the

allegedly retaliatory act foreclosed the possibility of establishing a causal connection.

Deshpande, 2008 WL 2004160, at *6. Instead, the court found that the plaintiff would

“have [an] opportunity through discovery to produce direct evidence of a causal

connection or to argue that, under the circumstances of this case, five months is

temporally close enough to support an inference of causation.” Id. The Court here

reaches the same conclusion.

As the plaintiff has stated a claim for retaliation, the Court need not consider

now whether the continuation of the activities forming the basis of Dr. Rehman’s

initial complaints can serve as additional evidence of retaliation.

As to the Plaintiff’s Claims Pursuant to 42 U.S.C. § 1981 (Count V)

The plaintiff stipulates to the dismissal of his § 1981 claim for monetary

damages against the state entities and his § 1981 claim against the individual

defendants in their official capacities based upon the Eleventh Amendment to the

United States Constitution. However, the plaintiff contends that he may maintain his

claim against the state entities and officials insofar as it seeks prospective injunctive

relief and against the individual defendants in their individual capacities.

The defendants contend that the plaintiff’s claims pursuant to § 1981 must be

dismissed because § 1983 is the only remedial provision for claimed violations of the

federal rights protected by § 1981. Section 1983, provides for a legal remedy against

any “person who, under color of any statute, ordinance, regulation, custom, or usage,

of any State … subjects, or causes to be subjected, any citizen of the United States … to

the deprivation of any rights, privileges, or immunities secured by the Constitution

and laws.” 42 U.S.C. § 1983. However, § 1983 does not, itself confer any substantive

rights. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). On the

other hand, § 1981 is the source of certain substantive rights providing that “[a]ll

persons within the jurisdiction of the United States shall have the same right . . . to

make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. §

1981(a).

In Patterson, the Second Circuit recognized that “‘the express cause of action

for damages created by § 1983 constitutes the exclusive federal remedy for violation

of the rights guaranteed in § 1981 by state governmental units . . . .’” Patterson, 375

F.3d at 225 (quoting Jett v. Dallas Independent School District, 491 U.S. 701, 733,

109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). Courts have interpreted this prohibition to

extend to actions against individual defendants in their individual capacities. See

Westbrook v. City University of New York, No. 03CV5833, 2008 WL 5274449, at *12

(E.D.N.Y. Dec. 19, 2008). “‘State employment has generally been deemed sufficient

to render the defendant a ‘state actor.’” Id. (quoting Roddini v. City University of New

York, No. 02CV4640, 2003 WL 435981, at *5 (S.D.N.Y.2003)); see also Whaley v.

City University of New York, 555 F. Supp. 2d 381, 400–01 (S.D.N.Y. 2008) (“The

holding in Jett has been interpreted to encompass not only governmental entities, but

also individuals sued in their individual capacities who are ‘state actors’”.)

Accordingly, the plaintiff does not have an independent § 1981 claim against any of

the defendants and the Court will construe the plaintiff’s § 1981 claims as brought

pursuant to § 1983.

As to the Plaintiff’s Claims Pursuant to 42 U.S.C. § 1983

1. Eleventh Amendment Immunity

The plaintiff stipulates to the dismissal of his § 1983 claims for monetary

damages against the state entities and his § 1983 claims against the individual

defendants in their official capacities based upon the Eleventh Amendment to the

United States Constitution . However, the plaintiff contends that he may maintain his

claim against the state entities and officials insofar as it seeks prospective injunctive

relief and against the individual defendants in their individual capacities.

In Dube v. State University of New York, 900 F.2d 587 (2d Cir. 1990) the

Second Circuit explained that because SUNY was an integral part of the state

government and it did not waive Eleventh Amendment immunity, no relief, legal or

equitable was available against it. Dube, 900 F.2d at 594. However, the court

explained that prospective relief claims for violations of federal Constitutional rights

could be maintained against the individual defendants acting in their official

capacities, which would provide the same relief as an action maintained against

SUNY itself. Id. at 596. Accordingly, here, the State defendants are entitled to

complete immunity, but the plaintiff may maintain his claim against the individual

defendants in their official capacities for prospective relief. Further, the Eleventh

Amendment provides no immunity for individual defendants sued in their individual

capacities. See id.

In addition to compensatory damages, the plaintiff’s demand for relief seeks an

injunction to prevent the defendants “from any further acts adversely affecting the

terms and conditions of plaintiff’s employment including his appointments,

compensation and privileges.” The defendants contend that the plaintiff’s claims for

injunctive relief have been rendered moot because as of April 9, 2008, the plaintiff is

no longer employed at SUNY Stony Brook or at the Stony Brook Medical Center and

is currently working as a physician in Maryland. See Ehrenberg v. Goord, 7 Fed.

Appx. 80, 83 (2d Cir. 2001) (finding moot the plaintiff’s request for injunctive relief

where he was transferred out of prison facility that he claimed denied him a

preferential work assignment on the basis of race). It is unclear from the pleadings

whether the plaintiff seeks reinstatement of his former position. Accordingly, drawing

all reasonable inferences in favor of the plaintiff, the Court finds that the plaintiff has

stated a claim for prospective injunctive relief against the individual defendants acting

in their official capacities. See Miles v. Baruch College, No. 07CV1214, 2008 WL

222299, at *4 (E.D.N.Y. January 25, 2008) (declining to dismiss on Eleventh

Amendment immunity grounds, plaintiff’s claims against state officials under § 1981

and § 1983, seeking reinstatement).

As to the Plaintiff’s Claims for Violation of § 1981

Aside from contesting the viability of the plaintiff’s § 1981 claim as a separate

cause of action, the defendants do not dispute that the plaintiff’s discrimination claims

are substantively sufficient to withstand a motion to dismiss. Therefore, the

plaintiff’s claims for violation of § 1981 will proceed under § 1983 as to the individual

defendants in their official capacities with respect to his claim for injunctive releief

and as to the individual defendants in their individual capacities in all other respects.

As to the Plaintiff’s Claims for Violation of the First Amendment
(Count IX)

The complaint alleges that the plaintiff’s voiced certain concerns to University

President Kenny and others, including the plaintiff’s statements that Dr. Waltzer

engaged in discriminatory conduct and deceptive billing, as well as the plaintiff’s

statements that patient safety was threatened by certain hospital practices. The

defendants contend that the plaintiff’s speech was not protected by the First

Amendment because these statements were truly calculated to redress the plaintiff’s

personal grievances rather than seeking to serve a broader public purpose.

A public employee claiming retaliation for the exercise of his First

Amendment rights must establish: “(1) the speech at issue was made as a citizen on

matters of public concern rather than as an employee on matters of personal interest;

(2) he or she suffered an adverse employment action, and (3) the speech was at least a

substantial or motivating factor in the adverse employment action.” Johnson v.

Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (internal quotations and citations omitted).

Pursuant to the Supreme Court’ s decision in Garcetti v. Ceballos, 547 U.S. 410, 126

S.Ct. 1951, 164 L.Ed.2d 689 (2006), “when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.” Garcetti, 126 S. Ct. at 1960. However, as the plaintiff’s

primary duties are as physician and professor, his speech regarding hospital practices

was not dictated directly by his duties and can be viewed as a citizen’s speech on a

matter of public concern.

Speech is deemed a matter of public concern where it relates to “to any matter

of political, social, or other concern to the community.” Id. (quoting Connick v.

Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Court finds

that the plaintiff’s complaints to Kenny, the President of SUNY Stony Brook, and

others regarding billing practices, safety concerns, and credentialing of department

members in the Medical Center were related to matters of public welfare, rather than

merely to his own grievances, and are sufficient to survive the present motion to

dismiss. See Reuland v. Hynes, 460 F.3d 409 (2d Cir. 2006) (finding the plaintiff’s

statement to a magazine reporter that the district in which he was employed was the

best place to be a homicide prosecutor because it had more dead bodies per square

inch than any place else constituted a statement on a matter of public concern because

his statement addressed the crime rate in the district, which was a matter of political,

social, or other concern to the community).

As to the Plaintiff’s Claims for Violation of Due Process (Count X)

The complaint alleges that the defendants’ nonrenewal of the plaintiff’s

employment based on discriminatory and retaliatory reasons constitutes a deprivation

of protected property and liberty interests. The defendants contend that the plaintiff’s

Due Process claims must be dismissed because the plaintiff has failed to establish a

substantive liberty or property interest in his position at the Medical Center.

In order to prevail on a § 1983 claim for violation of the procedural due

process rights guaranteed by the Fourteenth Amendment, the plaintiff must show (1)

that he possessed a protected liberty or property interest; and (2) that he was deprived

of that interest without due process. McMenemy v. City of Rochester, 241 F.3d 279,

285–86 (2d Cir. 2001).

The Constitution protects property interests, but does not create them.

Property interests “are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law-rules or

understandings that secure certain benefits and that support claims of entitlement to

those benefits.” Roth, 408 U.S. at 577, 92 S.Ct. 2701, 33 L.Ed.2d 548. “The Supreme

Court has explained that ‘[t]o have a property interest in a benefit, a person clearly

must have more than an abstract need or desire for it. He must have more than a

unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to

it.’” McMenemy, 241 F.3d at 286 (quoting Board of Regents of State Colleges v. Roth,

408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)).

In Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623 (2d Cir.

1996), the Second Circuit found that the plaintiff had no property interest in her non-

tenured appointment as a school assistant principal where her hiring notice clearly

described her appointment as probationary and the applicable education statute

allowed for termination on the recommendation of the superintendent of schools, by a

majority vote of the board of education. Donato, 96 F.3d at 629.

Further, in Dube v. State University of New York, the plaintiff, a college

professor, alleged that his due process rights were violated by the defendant’s

promotion tenure review procedure. Dube, 900 F.2d at 599. The court stated that “a

claim to tenure constitutes a protected property interest only if it amounts to a

legitimate claim of entitlement thereto.” Id. (internal quotations and citations

omitted). The court found that the record indicated only that the plaintiff was entitled

to be considered for tenure “in accordance with established contractual procedures,”

and concluded that such entitlement did not rise to the constitutional level of a

protected interest. See id. (collecting cases); see also Jones v. Kneller, 482 F. Supp.

204, 210 (E.D.N.Y.1979) (contractual right of tenure review and confrontation held

not to give rise to Fourteenth Amendment property interest), aff’d mem., 633 F.2d 204

(2d Cir.), cert. denied, 449 U.S. 920, 101 S.Ct. 318, 66 L.Ed.2d 147 (1980).

Here, the plaintiff’s employment was dictated by the appointment letter of

March 29, 2002, which by its express terms was a term appointment from August 1,

2002 to July 31, 2003. Although the plaintiff’s term was renewed for the period from

August 1, 2003 through July 31, 2007, he had no right to renewal or a constitutionally

protected property interest in his expectation of renewal. In addition, the plaintiff

points to no specific SUNY Stony Brook policy or practice sufficient to create an

implied understanding that his contract would be continually renewed. See Donato,

96 F.3d at 629 (citing Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 2700,

33 L.Ed.2d 570 (1972) (adherence to a pattern of conduct could create an expectation

of continued employment)); Ezekwo v. New York City Health & Hospitals Corp., 940

F.2d 775, 783 (2d Cir. 1991) (finding a property interest in Chief Resident position

where hospital adopted an established policy of awarding the position to all third year

residents on a rotating basis).

The plaintiff also asserts a liberty interest in his employment with the

defendants. Indeed, the liberty interests contemplated by the Fourteenth Amendment

include the freedom “to engage in any of the common occupations of life.” Meyer v.

Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). “However, as

understood by the Fourteenth Amendment, a decision not to reemploy, standing alone,

does not deprive an employee of liberty.” Donato, 96 F.3d at 630.

Liberty interests are implicated only where there are special aggravating

circumstances. “[W]hen the state fires an employee and publicly charges that she

acted dishonestly or immorally, due process guarantees the employee an opportunity

to defend her ‘good name, reputation, honor or integrity.’” Id. at 630 (quoting Roth,

408 U.S. at 573, 92 S.Ct. at 2707); see also Bishop v. Wood, 426 U.S. 341, 96 S.Ct.

2074, 48 L.Ed.2d 684 (1976) (rejecting the theory that the mere fact of dismissal,

absent some publicizing of the reasons for the action, could amount to a stigma

infringing one’s liberty). A stigmatizing statement is deemed publicly disclosed

where it is placed in the employees personnel file and is likely to be shared with

prospective future employers. Id. at 631.

A governmental statement that an employee is incompetent or can no longer

perform his job is more damaging than a statement that an employee performed their

job poorly because it carries a greater potential for disqualification from future

employment. Id. at 630. Public charges that go to a person’s professional competence

sufficiently impair a liberty interest and require that the employee be afforded an

opportunity to clear his name. O’Neill v. City of Auburn, 23 F.3d 685, 692 (2d Cir.

1994); cf. Roth, 408 U.S. at 575, 92 S.Ct. at 2708 (“It stretches the concept too far to

suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job

but remains as free as before to seek another”); Astwood v. Department of

Corrections, 45 Fed. Appx. 40, 42 (2d Cir. 2002) (upholding summary judgment in

favor of defendant where termination letter of prison dentist noting “continuous

performance problems” would not be a significant roadblock to future employment).

Here, the plaintiff contends that the letter of March 30, 2007, recommending

that his employment be denied renewal, contained false statements. The Court has not

been provided a copy of that letter, but accepting as true the plaintiff’s allegation that

the letter contained false statements about his ability to fulfill his duties, the Court

finds that the plaintiff has sufficiently stated a claim under the Due Process clause of

the Fourteenth Amendment.

As to the Plaintiff’s State Law Claims

1. Eleventh Amendment Immunity

As noted above, the plaintiff has stipulated to the dismissal of his state law

claim for retaliation against the New York State defendants; his state law claim for

breach of contract against the New York State defendants; and his state law claim for

waste against the New York State defendants. Accordingly, the plaintiff proceeds

with his state law claims only against the individual defendants in their individual

capacities.

2. New York State Retaliation (Count IV)

The defendants repeat the arguments made regarding the plaintiff’s Title VII

retaliation claims with respect to the plaintiff’s retaliation clams brought under the

NYSHRL. As discussed in section II(B) above, the plaintiff has alleged facts

sufficient to support a claim for retaliation. Accordingly, the defendants’ motion to

dismiss is denied.

3. Breach of Contract

The plaintiff contends that the defendants breached the covenant of good faith

and fair dealing by inducing his acceptance of the Assistant Professor position with

SUNY Stony Brook by making affirmative assurances and then failing to propose the

plaintiff for appointment or promotion to Associate or Full Professor. Further, the

plaintiff claims that he should be compensated for the injuries he sustained by taking

the position at SUNY Stony Brook where his acceptance was fraudulently induced by

Dr. Waltzer’s assurances that the plaintiff would be fast tracked for a promotion and

afforded sufficient time for research at the Medical Center.

At the outset, the Court notes that under New York Law, a claim for breach of

an implied covenant of good faith and fair dealing does not provide a cause of action

separate from a breach of contract claim. “[P]arties to an express contract are bound

by an implied duty of good faith, but breach of that duty is merely a breach of the

underlying contract.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 80

(2d Cir. 2002) (citing Fasolino Foods Co., Inc., v. Banca Nazionale del Lavoro, 961

F.2d 1052, 1056 (2d Cir. 1992)); Village On Canon v. Bankers Trust Co., 920 F. Supp.

520, 534 (S.D.N.Y.1996) (breach of good faith and fair dealing claim does not provide

independent basis for recovery). Here, the plaintiff does not, and cannot, assert that

the defendants breached any express term of the parties’ agreement, which clearly

provided for a term appointment. Accordingly, with no breach of contract claim, the

question becomes whether the plaintiff may maintain a separate tort cause of action

for fraudulent inducement. Smalley v. Dreyfus Corp., 10 N.Y.3d 55, 853 N.Y.S.2d

270, 882 N.E.2d 882 (2008).

Where a party asserts fraudulent inducement to an employment agreement, he

must show: (1) that the alleged inducing misrepresentation was collateral to the

agreement; and (2) was not inconsistent with the agreement. Naccarato v.

Commercial Capital Corp., 19 Misc. 3d 1109(A), 2008 WL 795774, at *5 (N.Y. Sup.

New York County March 13, 2008). The parole evidence rule does not preclude

evidence of fraudulent inducement as long as the agreement at issue does not contain a

clause specifically disclaiming reliance upon outside representations. Id.

In Smalley, the New York Court of Appeals discussed at length the Second

Circuit’s holding in Stewart v. Jackson & Nash, 976 F.2d 86 (2d Cir.1992). The Court

explained:

In Stewart, defendant law firm recruited an environmental
law attorney (plaintiff Victoria Stewart), telling her that it had
secured a large environmental law client, that she would work on
that client’s matters and that the firm was establishing an
environmental law department, which she would head. When
Stewart arrived at the firm, however, she learned that the firm was
still trying to secure the client, and she performed only general
litigation work. The firm later terminated her employment, and
she brought suit for damages. Reversing the United States District
Court, the Second Circuit denied the law firm’s motion to dismiss

Stewart’s fraudulent inducement claim both because the firm’s
promises concerning the environmental law client and department
were misstatements of present fact, and because the alleged
injuries-thwarting her professional objective to specialize in
environmental law, and damaging her career potential-occurred
well before plaintiff’s termination and were unrelated to it.

Smalley, 10 N.Y.3d 55, 58–59, 853 N.Y.S.2d 270, 882 N.E.2d 882. With this

background, the Smalley Court dismissed the plaintiffs’ fraudulent inducement claims

because they alleged no injury above and beyond termination of their employment.

Id. 10 N.Y.3d 55, 59, 853 N.Y.S.2d 270, 882 N.E.2d 882.

Critical to the Second Circuit’s decision in Stewart was the distinction between

“a prospective business partner’s promissory statements as to what will be done in the

future, which give rise only to a breach of contract claim, and his or her false

representations of present fact, which give rise to a separable claim of fraudulent

inducement.” Stewart, 976 F.2d at 89 (internal quotations and citations omitted). The

court was persuaded that the employer’s assurances that it had secured a large

environmental law client and was in the process of establishing an environmental law

department were not merely future promises, but representations of present fact. Id.

Here, Dr. Waltzer’s purported assurances that the plaintiff would be fast tracked for

promotion and would have ample time to conduct research are non-actionable future

promises.

As discussed above, the plaintiff cannot maintain a claim for breach of

contract. Accordingly, the plaintiff’s breach of contract claim is dismissed and the

plaintiff cannot state a claim for fraudulent inducement.

4. Waste

Finally, the plaintiff asserts that the defendants have wasted state assets

including equipment that the plaintiff was awarded pursuant to a grant, which was

removed from the plaintiff’s laboratory, making it unusable for the research purposes

for which it was intended.

The plaintiff’s claim must be dismissed. First, actions in waste are generally

relegated to cases where the holder of real property causes a deterioration of the

property, impairment of a mortgage, or a loss of assets or value of a corporation by its

fiduciaries. See, e.g., Fellner v. Morimoto, 52 A.D.3d 352, 862 N.Y.S.2d 349 (1st

Dept. 2008) (corporate waste); Sutton Investing Corp. v. City of Syracuse, 48 A.D.3d

1141, 853 N.Y.S.2d 233 (4th Dep’t 2008) (“[W]aste to property has been defined as

any destruction, misuse, alteration, or neglect of premises by one lawfully in

possession thereof to the prejudice of the . . . interest therein of another” (internal

quotations and citations omitted)); Band Realty Co. v. North Brewster, Inc., 59 A.D.2d

770, 771 (2d Dep’t.1977) (“The foundation of an action for waste by a mortgagee is

the impairment of the security of the mortgage with knowledge of the lien.” (citations

omitted)). Further, even if the removal of laboratory equipment was a “waste” of state

resources, the plaintiff fails to explain how the waste of state resources damaged him.

Therefore, this claim for waste against the individual defendants must be dismissed.

III.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED, that the plaintiff’s age discrimination claims are dismissed

without prejudice and with leave to renew; and it is further

ORDERED, that the defendants’ motion to dismiss the plaintiff’s Title VII

retaliation claims is denied; and it is further

ORDERED, that the defendants’ motion to dismiss the plaintiff’s NYSHRL

retaliation claims is denied; and it is further

ORDERED, that the plaintiff’s § 1981 claim is dismissed with prejudice

insofar as it is set forth as a separate cause of action; and it is further

ORDERED, that the defendant’s motion to dismiss the plaintiff’s § 1983

claims for violations of § 1981, the First Amendment, and the Due Process clause of

the Fourteenth Amendment is denied; and it is further

ORDERED, that the plaintiff’s New York State breach of contract claim is

dismissed with prejudice; and it is further

ORDERED, that the plaintiff’s New York State waste claim is dismissed with

prejudice; and it is further

ORDERED, that the parties are directed to report to United States Magistrate

Judge Michael L. Orenstein for the purpose of setting a discovery schedule.

SO ORDERED.

Dated: Central Islip, New York
February 6, 2009

/s/ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge