LI-WEI KAO, Plaintiff,
v.
ERIE COMMUNITY COLLEGE, ERIE COUNTY,
and BUFFALO AND ERIE COUNTY WORKFORCE DEVELOPMENT CONSORTIUM, INC., Defendants.
11-CV-415S
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
June 18, 2015
DECISION AND ORDER
Plaintiff Li-Wei Kao brings this employment discrimination action against Erie Community College ("ECC"), Erie County, and Buffalo and Erie County Workforce Development Consortium, Inc. ("WDC") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Civil Rights Act of 1870, as amended, 42 U.S.C. § 1981 ("Section 1981"), and § 290 et seq. of the New York Human Rights Law ("NY HRL"). Plaintiff alleges that he was discriminated against on the basis of his race and national origin and that he was retaliated against for engaging in protected activities.
This Court has federal question jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331. As discussed below, pursuant to New York Exec. Law § 297(9), this Court has no jurisdiction over Plaintiff's NY HRL claims. All defendants moved for Summary Judgment on all relevant claims. For the reasons stated below,
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ECC's Motion is GRANTED, Erie County's Motion is GRANTED, and WDC's Motion is GRANTED.
Plaintiff is a person of Taiwanese national origin and is employed by Defendant ECC as a part-time instructor of non-credit remedial computer classes. (Complaint, ¶1; ECC Stmt., ¶¶2,6). As discussed in more detail below, Plaintiff's retaliation and discrimination claims relate to events that occurred during two separate time periods. First, he alleges certain acts of discrimination and retaliation during approximately May to November of 2008, beginning during the time he taught at the Buffalo and Erie County Training Center ("BETC") (ECC Stmt., ¶ 4), and until he was reassigned to teach similar classes at another location in Buffalo ("45 Oak Street"). (ECC Stmt., ¶¶6,13,15; Plaintiff ECC Stmt., ¶¶6,15). Second, he alleges retaliatory actions taken against him during late 2009 and 2010, which had a negative impact on his ability to continue to
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teach regularly at 45 Oak Street. (ECC Stmt., ¶23; Plaintiff ECC Stmt., ¶23). His 2010 New York State Division of Human Rights ("NYSDHR") complaint and this law suit followed.
A. Procedural History
On July 19, 2010, Plaintiff filed a Verified Complaint with the NYSDHR, charging defendants Erie County and ECC with employment discrimination based on "race/color, national origin, opposed discrimination/retaliation," in violation of NY HRL and Title VII. (Complaint, Exh. A). In it, he authorized the NYSDHR to accept the complaint on behalf of the U.S. Equal Opportunity Employment Commission ("EEOC"). On April 14, 2011, the NYSDHR issued a "Determination and Order after Investigation" dismissing his complaint, finding NO PROBABLE CAUSE to believe ECC or Erie County engaged in the unlawful discriminatory practice described. (NYSDHR Order, Docket No. 65-3). Plaintiff did not appeal this decision, nor did he request a review by the EEOC. Subsequently, on May 10, 2011, the EEOC issued a "Dismissal and Notice of Rights" adopting the findings of the NYSDHR, and advising plaintiff of his right to file a lawsuit under federal law within 90 days of his receipt of the notice. (Complaint, Exh. B). Plaintiff commenced this action on May 13, 2011 (within the 90-day period), by filing a Complaint in the United States District Court for the Western District of New York (Docket No. 1), seeking injunctive relief and monetary relief for lost wages, lost benefits, and other damages, as well as punitive damages for the Title VII claim, based on the following five causes of action:
1. Discrimination on the basis of national origin in violation of Title VII, including disparate treatment, discriminatory termination, discriminatory terms and conditions of employment, and hostile work environment, by Erie County and ECC.
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2. Retaliation in violation of Title VII, including disparate treatment, discriminatory terms and conditions of employment, and hostile work environment, by Erie County and ECC.
3. Discrimination and harassment in violation of Section 1981 by all defendants, including hostile work environment and discriminating termination.
4. National origin and race discrimination in violation of the New York Human Rights Law by all defendants.
5. Retaliation discrimination in violation of the New York Human Rights Law by all defendants.
On July 29, 2013, all Defendants moved for summary judgment on all claims, based on untimeliness, undisputed material facts, and legally insufficient claims. (Docket Nos. 40-66; 67; 68). Plaintiff filed submissions in opposition on September 30, 2013 (Docket Nos. 74-78), and Defendants filed reply memoranda on October 11, 2013 (Docket Nos. 79; 80; 81-83). This Court took the motions under advisement without oral argument.
B. The Parties2
ECC is a community college organized and existing pursuant to the laws of the State of New York (ECC Stmt., ¶1) and is part of the State University of New York. (Erie County Stmt., ¶3). Defendant Erie County is the "sponsor" for ECC as required by statute and provides approximately 17% of ECC's budget. (Erie County Stmt., ¶¶3,4).
Defendant WDC is a not-for-profit with two members, the Mayor of Buffalo and the County Executive. (WDC Stmt., ¶9). WDC's primary objective is to administer Federal and State Workforce Investment Act funds, and other funds and grants, for employment and training program purposes. (WDC Stmt., ¶8). WDC receives its
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funding from the New York State Department of Labor, from which it pays approximately thirty employees at the Buffalo and Erie County Training Center ("BETC"). (WDC Stmt., ¶10). The BETC has no employees of its own, rather it is a location where a variety of services are made available to displaced workers and others seeking employment, and is funded and primarily staffed by WDC. (WDC Stmt., ¶¶3,4). At all relevant times, Colleen Cummings, a City of Buffalo employee, was the Director of the BETC and the supervisor of the WDC staff at the BETC. (WDC Stmt., ¶7 ; ECC Stmt., ¶5).
Plaintiff began teaching basic computer classes at the BETC as a WDC employee in approximately June of 2003. (WDC Stmt., ¶¶1,2). During 2006, WDC and ECC entered into a contract for ECC to provide basic computer courses at the BETC and the instructors for those courses. (WDC Stmt., ¶11). In conjunction, ECC hired Plaintiff on or about June 1, 2006 as a part-time instructor for ECC's Workforce Development office (ECC Stmt., ¶2), which offers remedial non-credit computer courses at several locations, including ECC North Campus, ECC South Campus, 45 Oak Street, (near ECC City Campus), and at the BETC. (ECC Stmt., ¶4). At all relevant times, Carrie Kahn was ECC's Executive Dean of Workforce Development and managed the relationship between ECC and WDC. (ECC Stmt., ¶8). Plaintiff avers that while he taught at the WDC as an ECC employee, he was supervised by Cummings and Joseph Sullivan, WDC's manager of Placement and Retention and the Career Resources Center (WDC Stmt., ¶15), and that Jeanette Madoo, another WDC employee, created his schedules, ordered materials, and developed curriculum. (Plaintiff Erie County Stmt., ¶9).
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While assigned to the BETC, Plaintiff was paid by ECC for the hours he taught, but for a period of time, he also earned wages from WDC for his preparation time, in accordance with WDC paying other instructors for the same. (Plaintiff Dep., pp.22-23, Docket No. 45). Plaintiff also worked part-time for a different employer teaching computer classes at another downtown location in the afternoons (ECC Stmt., ¶7) and occasionally at the BETC (See Plaintiff Decl., ¶56). Plaintiff continued to teach computer classes on a part-time basis at the BETC until October 2, 2008. (WDC Stmt., ¶12; ECC Stmt., ¶¶2,4). In November 2008, Plaintiff was assigned to teach non-credit remedial classes at ECC Workforce Development's 45 Oak Street location, where Plaintiff remained an instructor as an ECC employee until at least the date of the parties briefings. (ECC Stmt., ¶6). As discussed herein, Plaintiff concedes he is technically an ECC employee, but he disputes that he, in fact, remained employed throughout the relevant time period; first, because he claims he was told he was "terminated" in October of 2008, and second, because his hours have substantially decreased over time. (Plaintiff ECC Stmt., ¶6).
C. Events Leading to Plaintiff's Removal from BETC
Plaintiff alleges that in 2008, Sullivan began treating him poorly. (Plaintiff Decl., ¶28). Sometime before May 16, Sullivan and Plaintiff had a dispute about Plaintiff's treatment of a student who was tardy for his class. (WDC Stmt., ¶15; Plaintiff WDC Stmt., ¶15). Plaintiff claims that Sullivan became hostile with him, and stated: "you all of a sudden Mr. By the Rule," and then threatened that "I can be on your back too. If you come in two minutes late or leave two minutes early, I can be Mr. By the Rule too."
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(Plaintiff Dep., p.37).3 Sometime after that, on or about May 16, 2008, Plaintiff discovered a student cheating on an exam, and had another disagreement with Sullivan...
