Luka v. Bard College

263 F. Supp. 3d 478
CourtDistrict Court, S.D. New York
DecidedJune 29, 2017
Docket15-cv-04598 (ALC) (DCF)
StatusPublished
Cited by51 cases

This text of 263 F. Supp. 3d 478 (Luka v. Bard College) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luka v. Bard College, 263 F. Supp. 3d 478 (S.D.N.Y. 2017).

Opinion

OPINION AND ORDER

ANDREW L. CARTER, JR., United States District Judge:

Plaintiff Barbara Luka brings this action against her former employer, Defendant Bard College, and three individuals affiliated with Bard: Frank Scalzo, Michele Dominy, and Leon Botstein. She alleges that Defendants discriminated against her on the basis of her age, gender, perceived disability, and sexual orientation, in violation of the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the New York State Human Rights Law. She also alleges that Defendants retaliated against her in violation of Title VII and the New York State Human Rights Law. Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiffs age, gender, and disability discrimination claims. For the reasons that follow below, Defendants’ motion is granted in part and denied in part.

BACKGROUND

I. Factual Background

The following facts are drawn from Plaintiffs Second Amended Complaint, and are presumed to be true for purposes of this motion to dismiss. ECF No. 81 (“Compl.”).

Plaintiff is a 48-year-old lesbian. Compl. ¶ 5. She formerly was employed as a Visiting Professor and an Assistant v Professor by Bard College (“Bard” or the “College”), a private liberal arts university in Dutch-ess County, New York. Id. ¶¶5-6. The individual defendants are all associated with Bard: Defendant Frank Scalzo is a professor at Bard and the former Chair of the Psychology Program, Defendant Michele Dominy is a former Vice President and Dean of Bard, and Defendant Leon Botstein is the President of Bard. Id. ¶¶ 7-9.

Plaintiff is a scientist who “conducts research on the neurological and cognitive bases of language compiehension and human memory.” Id. ¶20. She received her PhD in 1999. Id. ¶ 134. In-May 2003, Bard hired Plaintiff for a two-year appointment as a Visiting Professor in the Psychology Program. Id. ¶¶ 12, 16. In 2005, the College hired her into a tenure-track position. Id. ¶ 16. At Plaintiffs pre-tenure review in 2007, Scalzo recommended her for reappointment and gave her a positive evaluation. Id. ¶ 32. Then, sometime the following year, Scalzo became aware of Plaintiffs sexual orientation, and his attitude toward her became “actively very hostile.” Id. ¶¶ 33-34. After leaving the College, Plaintiff subsequently learned that Scalzo “rég-ularly” referred to Plaintiff and her partner as a- “bitch” and, on one occasion, commented that Plaintiff seemed like she was having a “hormonal surge.” Id. ¶ 63.

Plaintiff first stood for tenure during the 2009-2010 academic year, at which time, in Plaintiffs estimate, her “academic file and her external evaluations were exemplary.” Id. ¶ 18. Accordingly, Plaintiffs tenure application “garnered broad support from faculty across the College.” Id. However, Plaintiff learned during the course of her tenure review that Scalzo “falsely and maliciously” told faculty members, including those in positions' to evaluate Plaintiffs tenure application, that Plaintiff was “mentally unstable,” and told others in the Psychology Program that Plaintiff was “crazy” and “did not deserve tenure.” Id. ¶¶ 35-36. At the time Plaintiff first was evaluated for tenure, Scalzo was the only active tenured member in the Psychology Program. Id. ¶30. Scalzo also served as the Division [482]*482Evaluator for Plaintiffs tenure process, in which capacity he gave her a negative recommendation, falsely claiming that she was not collegial with members of the Psychology Program. Id. ¶43. He recommended against Plaintiffs tenures*, .and Dominy, then the Dean, adopted that recommendation. Id, ¶ 46.

At the next step in 'the tenure process, the Faculty Evaluation Review Committee' (“FERC”) supported Plaintiffs tenure application, by a vote of three to 'two. Id. ¶ 47. Botstein, the President of Bard, had the final decision on Plaintiffs tenure, but rather than grant or deny her application, he offered Plaintiff a three-year extension of her current contract. Id. ¶ 48. Prior to making that decision, Botstein told Plaintiff that her “sexual orientation was not an issue to him,” but implied that it was an issue for Scalzo. Id. ¶¶ 49-51. Botstein also told Plaintiff that he wanted to extend her contract rather than grant her tenure because he was “troubled by the inconsistency” between the positive reviews Plaintiff received from people outside the Psychology Program and the negative reviews by Scalzo and other members of the Psychology Program. Id. ¶ 52. In response, Plaintiff explained that Scalzo occupied a position of power within the Psychology Program given his presiding status over other professors’ pre-tenure reviews, and further noted that these more junior faculty members knew Scalzo did not like Plaintiff. Id. ¶¶ 53-54.

Plaintiff next was evaluated for tenure in 2013. Id. ¶ 106. In the years between her tenure applications, another member of the Psychology Program, Beth Gershu-ny, lodged- a complaint of sexual harassment against Scalzo. Id. ¶¶ 56-62, 69-73. In addition to raising her own complaints, Gershuny told Dominy that Scalzo treated .Plaintiff in a similar manner. Id. ¶ 71. The College commenced an investigation, but only after Gershuny had been recommended for tenure. Id. ¶¶ 72-75. Dominy told Plaintiff that she had kept Gershuny’s complaint confidential until that point so as not to harm Gershuny’s 'chances in her tenure application. Id. ¶¶ 80-82. During this same conversation, Plaintiff raised her own problems with Scalzo, explaining that she had not previously brought these issues forward for fear it would make matters worse. Id. ¶¶ 85-89.

During the course of Bard’s investigation into Gershuny’s complaint, the investigator interviewed Plaintiff. Plaintiff told the investigator about “all the ways Defendant Scalzo had made her life miserable.” Id. ¶ 90, Based on ,a conversation witji another member of the Psychology Program, Plaintiff believes that Dominy and Botstein were aware of the allegations Plaintiff relayed to the investigator. Id, ¶100. After Plaintiffs interview, with the investigator, Dominy began , to act hostile toward Plaintiff. Id. ¶¶ 101-Ó5, In particular, when Scalzo went on sabbatical in the fall of 2011, Dominy appointed two of Plaintiffs junior colleagues to run the Psychology Program, rather than Plaintiff, who was the most senior faculty member. Id. ¶ 104. Plaintiff believes this negatively impacted her 2013 tenure application. Id. ¶¶ 105,128.

At the time of Plaintiffs tenure review in 2013, she received positive external reviews. ' Id. ¶ 113. Additionally, consistent with Botstein’s written evaluation 'from Plaintiffs last tenure review, Plaintiff published several articles in “peer reviewed and prestigious journals.” Id. ¶ 110. While Dominy initially told Plaintiff that Sealzo would recuse himself from consideration of Plaintiffs tenure, that proved not to be true. Id. ¶¶ 111-14. Plaintiff believes that Dominy’s decision to allow Scalzo to participate in Plaintiffs tenure review was in retaliation for Plaintiffs participation -in-[483]*483the investigation prompted by Gershuny’s complaints. Id. ¶ 117.

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263 F. Supp. 3d 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luka-v-bard-college-nysd-2017.