Balk v. New York Institute of Technology et al
Filing
211
OPINION AND ORDER: For the foregoing reasons, defendant NYIT's motion for summary judgment is GRANTED in full and plaintiff's motion for summary judgment is DENIED in full. Plaintiff's First, Second, Third, Fourth, Sixth, Seventh, Eig hth, and Ninth Claims are dismissed against NYIT, and NYIT is dismissed from this case. Plaintiff's Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Claims survive to the extent that they are asserted against other defendants. The Clerk of the Court is directed to close these motions (Docket Nos. 172 and 180). (As further set forth within this Opinion.) Ordered by Magistrate Judge Shira A. Scheindlin on 9/16/2015. (DelSignore, Angela)
Seventh, Eighth and Ninth Claims.1 The upshot of these overlapping motions is
that all claims relevant to NYIT are in dispute. For the following reasons, NYIT’s
motion for summary judgment is GRANTED in full and Balk’s motion for
summary judgment is DENIED in full, dismissing all claims against NYIT.
II.
BACKGROUND2
A.
Balk’s Teaching Agreements with NYIT Bahrain
Balk is a white, non-Muslim, American citizen.3 In June 2006,
pursuant to a one-year employment contract with NYIT (“First Teaching
Agreement”), Balk took a computer graphics teaching post at NYIT’s campus in
Manama, Bahrain (“NYIT Bahrain”).4 Contracted by NYIT, Infotec Corporation
1
Although the most recent Complaint in this case is the Third Amended
Complaint (filed April 3, 2014), plaintiff’s motion for summary judgment refers
only to the Second Amended Complaint. As the only difference between
plaintiff’s Second and Third Amended Complaints is the addition of claims against
new defendant Mohamed Hussein – who is not party to the instant motions – I will
consider the Third Amended Complaint (“Compl.”) to be the operative Complaint
for purposes of this Opinion.
2
The following facts are taken from plaintiff’s Third Amended
Complaint, Defendant NYIT’s Rule 56.1 Statement (“NYIT 56.1”), Plaintiff’s
Response to Defendant’s Rule 56.1 (“Balk 56.1 Resp.”), Plaintiff’s Rule 56.1
Statement (“Balk 56.1”), Defendant NYIT’s Response to Balk’s Rule 56.1 (“NYIT
56.1 Resp.”), and supporting documents.
3
See Compl. ¶ 35.
4
See NYIT 56.1 ¶ 1; Balk 56.1 ¶ 1.
-2-
(“Infotec”) provides operational support for NYIT Bahrain and other NYIT
campuses across the Middle East, including with respect to campus facilities,
recruitment, maintenance, and security services.5
Balk’s First Teaching Agreement provided that his employment term
at NYIT Bahrain would run from June 1, 2006 through May 31, 2007 and that his
annual compensation would be $86,000.6 On April 3, 2007, NYIT renewed Balk’s
teaching contract for another year (“Second Teaching Agreement”), pursuant to
which he was to continue teaching at NYIT Bahrain from June 1, 2007 through
May 31, 2008.7 Sections 3 and 5 of the Second Teaching Agreement provided that
Balk was to receive his annual compensation of $86,000 in monthly installments,
and Section 8 provided that, as a consultant and not an NYIT employee, Balk
“w[ould] not receive any NYIT employee benefits.”8 Additionally, Section 10(a)
provided that: “[t]his consulting agreement may not be modified or amended
except by a writing signed by both parties.”9 Section 10(b) provided that: “[t]his is
5
See NYIT 56.1 ¶ 39.
6
See id. ¶¶ 1-2; See also 5/5/06 Consulting Agreement, Ex. A to
12/15/14 Affidavit of NYIT’s Attorney, Samantha Beltre (“Beltre Aff.”) ¶ 2.
7
See NYIT 56.1 ¶¶ 3-4; 4/7/07 Consulting Agreement, Ex. B to Beltre
Aff. ¶ 2.
8
See 4/7/07 Consulting Agreement ¶¶ 3, 5, 8.
9
NYIT 56.1 ¶ 6; 4/7/07 Consulting Agreement ¶ 10(a).
-3-
the entire agreement of the parties on its [sic] subject, and there are no oral,
collateral or other agreements, documents, or representations that are intended to
be part of it or to construe it.”10 Balk received the entirety of the $86,000
compensation provided by the Second Teaching Agreement.11
Balk testified that in this position, he interacted with other
administrators at NYIT Bahrain and Infotec, including: Dr. Edward Giuliano,
NYIT President; Reginald Braggs, NYIT Dean of Students; Damon Revelas,
NYIT Bahrain Campus Dean; Richard Pizer, Provost; Cyrus Reed, NYIT Vice
President of Global Academic Programs; Roger Yu, Dean of the College of Arts
and Sciences; Robert Michael Smith, Middle East Fine Arts Computer Graphics
Coordinator; and Dr. Mohammed Hussein, NYIT Executive Chairman, Middle
East and Infotec President.12
In addition, Balk testified that he had a “verbal” agreement with Dean
Revelas, pursuant to which he would receive $150/hour for “overload” courses
10
NYIT 56.1 ¶ 7; 4/7/07 Consulting Agreement ¶ 10(b).
11
See NYIT 56.1 ¶ 5.
12
See 12/11/14 Affidavit of Dennis Balk (“Balk Aff.”), Ex. 1 to
12/15/14 Affidavit of Balk’s Attorney, Ridley M. Whitaker (“Whitaker Aff.”) ¶ 6.
-4-
taught in excess of those required by the Second Teaching Agreement.13 Balk also
testified that he had spoken with Dean Yu and Professor Smith about the
possibility of renewing his teaching contract for a third term.14 He further testified
that this third contract was to cover the two-year period between June 1, 2008 and
May 31, 2010, and that its terms were to be “[s]ubstantially the same” as the
Second Teaching Agreement.15 On March 11, 2008, while under the Second
Teaching Agreement, Balk emailed Professor Smith stating that he was worried
because: “NYIT can simply not renew my contract . . . [and] since I have no
statement of promise for the contract, I have no concrete avenue for defense.”16
B.
Student Complaint Against Balk
On February 18, 2008, during the term of his Second Teaching
Agreement, Balk spoke with five students in the NYIT Bahrain cafeteria, two of
whom – Diyanah and Rahma Iskandrani (the “Iskandrani sisters”) – were planning
a trip to New York City.17 Balk has testified that during this conversation, he
13
See 6/25/12 Balk Deposition (“Balk Dep.”), Ex. C to Beltre Aff., at
87-90.
14
See id. at 90-91.
15
Id. at 91.
16
3/11/08 Email from Balk to Smith, Ex. AM to Beltre Aff.
17
See NYIT 56.1 ¶ 41; Balk Aff. ¶ 8.
-5-
“explained . . . that in a post-9/11 world in New York City that young Muslims
should be prepared when they go to the West to understand why people might feel
uncomfortable with them, because there are many preconceptions in New York
City towards Muslims.”18 He also testified that, as part of this same conversation,
he “told the students that there were also gay Muslims in New York and some of
them might also say that the Prophet Mohammad is gay.”19
A few days later, around February 24, 2008, the Iskandrani sisters
wrote to the NYIT administration, complaining that they had found Balk’s remarks
to be anti-Islamic and offensive (the “Student Complaint”).20 Their Student
Complaint included the following statements:21
•
“We were surprised and shocked with the words that Professor Dennis Balk
said as they were extremely rude, humiliating, disrespectful and full of clear
racism.”
•
“He gave examples about democracy that insults our religious beliefs and as
a professor he should realize that the words he said about our Prophet
18
Balk Aff. ¶ 13.
19
Id. ¶ 17.
20
See NYIT 56.1 ¶ 44; Balk 56.1 ¶ 31.
21
See Balk 56.1 ¶ 31.
-6-
Mohammad peace be upon him are very sensitive and will never be a
definition of democracy.”
•
“He mentioned that a proof of democracy would be building a church next to
our mosque and writing on the wall of it that our prophet is gay, and this is a
ridiculous example.”
C.
Response to the Student Complaint
Balk testified that Dean Braggs informed him about the Student
Complaint on February 24, 2008 and asked that he write a response.22 In the wake
of the Student Complaint, Balk sent an email stating that school administrators
were “extremely concerned about the spread of these allegations, rumors,
particularly at th[e] critical time of [school] accreditation.”23 On February 25,
2008, Balk read his letter response at a meeting with the Iskandrani sisters, Dean
Braggs, and other school administrators.24 After that meeting, Balk was asked by
the administration not to come to campus “at least tomorrow, as [Dean] Damon
[Revelas was] attempting damage control.”25
22
See Balk Aff. ¶¶ 21-25.
23
2/25/08 Email from Balk to Yu and Smith (“2/25/08 Balk Email”),
Ex. I to Beltre Aff.
24
See Balk Aff. ¶ 26.
25
2/25/08 Balk Email. Accord Balk Aff. ¶ 33.
-7-
Also on February 25, 2008, Dr. Hussein sent an email to Dr. Giuliano,
explaining, among other things, that NYIT Bahrain was investigating a student
complaint that Balk had made anti-Islamic comments but that “Balk has denied and
stated that the students misunderstood.”26 Dr. Hussein’s email further asserted that
Balk “has been against Islam for quite a long time” and that “[a]ll this information
is present in his website.”27 Due to the Student Complaint, Dr. Hussein’s email
cautioned:
Students had [sic] started to complain outside the campus
which means bad reputation for the University. . . . Now we
have this problem and I’ve [sic] to stop him from coming
to the campus before have more problems with the Ministry
of Education, Students, Government and before this is
printed in the media. This guy has to be removed
immediately from the country before they put him in jail.28
On February 26, 2008, Dr. Giuliano replied to Dr. Hussein’s email, copying other
school administrators, stating: “I appreciate the seriousness of this issue . . . [and] I
recognize that perception is reality and that we cannot afford this sort of negative
perception.”29
26
Balk 56.1 Resp. ¶ 47.
27
Id.
28
Id.
29
Id. ¶ 51.
-8-
In light of the controversy over the Student Complaint, Balk worried
that “they are going to fire me, I need to think how I can make them responsible for
a years salary”30 and expressed “concern[] about [his] physical safety.” 31 Over the
next several days, additional meetings were held among Balk, school
administrators, and students.32 On February 28, 2008, Balk attended another
meeting with school administrators and the Iskandrani sisters to “re-apologize” for
his remarks.33
On March 1, 2008 and March 6, 2008, respectively, two articles
appeared in Bahraini newspapers alleging that an unnamed professor at a private
university had published a cartoon of the Prophet Mohammad on his personal
website.34 On the evening of March 1, 2008, Balk was taken to the airport by an
Infotec representative and left Bahrain for Jordan.35 On March 18, 2008, NYIT
administrators informed Balk that he would not be able to return to NYIT
30
2/25/08 Email from Dennis Balk to Alit Balk, Ex. L to Beltre Aff., at
DB01730.
31
2/26/08 Email from Balk to Smith, Ex. N to Beltre Aff., at DB01484.
32
See NYIT 56.1 ¶ 62.
33
See 2/28/08 Email from Balk to Smith, Ex. P to Beltre Aff. Accord
NYIT 56.1 ¶¶ 63, 65.
34
See NYIT 56.1 ¶¶ 71-73, 78-80.
35
See Balk Dep. at 44, 80, 138-139. Accord NYIT 56.1 ¶ 76.
-9-
Bahrain.36
D.
NYIT’s Decision Not to Renew Balk’s Teaching Agreement
Around March 31, 2008, a meeting was held at NYIT’s campus in Old
Westbury, New York, at which Balk and other school administrators discussed
options for retaining Balk as a member of the NYIT faculty.37 Over the next
several weeks, NYIT explored whether Balk could teach at one of NYIT’s
campuses in China, Jordan, or New York.38 Provost Richard Pizer testified that
NYIT was unable, however, to renew Balk’s teaching contract for a third term
because “there was no place for him to teach.”39 Between 2005 and 2014, NYIT
was unable to renew teaching agreements for eighteen of its Middle East faculty,
four of whom were non-white and twelve of whom were citizens of countries other
than the United States.40
III.
LEGAL STANDARD
36
See Balk Dep. at 172-174.
37
See id. at 177-181.
38
See id. at 179-180, 182-184; 4/7/08 Email from Reed to Balk, Ex. AI
to Beltre Aff.
39
11/11/12 Deposition of Richard Pizer, Ex. E to Beltre Aff., at 274-
275.
40
See Affidavit of NYIT Vice President, Human Resources Carol
Jablonsky, Ex. BA to Beltre Aff. ¶ 5.
-10-
Summary judgment is appropriate “only where, construing all the
evidence in the light most favorable to the non-movant and drawing all reasonable
inferences in that party’s favor, there is ‘no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.’”41 “A fact is
material if it might affect the outcome of the suit under the governing law, and an
issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”42 “[T]he moving party has the burden of
showing that no genuine issue of material fact exists and that the undisputed facts
entitle [it] to judgment as a matter of law[.]”43 To defeat a motion for summary
judgment, the non-moving party must “do more than simply show that there is
some metaphysical doubt as to the material facts,”44 and “may not rely on
conclusory allegations or unsubstantiated speculation.”45
In deciding a motion for summary judgment, “[t]he role of the court is
41
Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 (2d
Cir. 2014) (quoting Fed. R. Civ. P. 56(c)) (some quotation marks omitted).
42
Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133
S. Ct. 2675 (2013) (quotation marks and alterations omitted).
43
Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations
omitted).
44
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quotation
marks and citations omitted).
45
Id. (quotation marks and citations omitted).
-11-
not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.”46 “‘Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’”47
“‘[S]ummary judgment may be appropriate even in the fact-intensive
context of discrimination cases’”48 given that “the salutary purposes of summary
judgment – avoiding protected and harassing trials – apply no less to
discrimination cases than to . . . other areas of litigation.”49 Thus, “even in the
discrimination context[,] . . . a plaintiff must provide more than conclusory
allegations to resist a motion for summary judgment.”50 Greater caution must be
exercised, however, in granting summary judgment in employment discrimination
cases where the employer’s intent is genuinely at issue and circumstantial evidence
46
Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.
2012).
47
Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012).
48
Skalafuris v. City of New York Dep’t of Corr., 437 Fed. App’x 54, 55
(2d Cir. 2011) (quoting Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 456
(2d Cir. 2001)).
49
Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (quotation marks
and citation omitted).
50
Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014).
-12-
may reveal an inference of discrimination.51 Nonetheless, “[c]ourts within the
Second Circuit have not hesitated to grant defendants summary judgment in such
cases where . . . plaintiff has offered little or no evidence of discrimination.”52
IV.
APPLICABLE LAW
A.
Title VII Discrimination
1.
Generally
Title VII prohibits an employer from discriminating against or
terminating an individual on the basis of “race, color, religion, sex, or national
origin.”53 “To withstand a motion for summary judgment, a discrimination
plaintiff must withstand the three-part burden-shifting [analysis] laid out by
McDonnell Douglas Corp. v. Green.”54
Under the McDonnell Douglas framework, an employee initially bears
the burden of producing evidence sufficient to support a prima facie case of
51
See Gorzynski v. JetBlue Airways, 596 F.3d 93, 101 (2d Cir. 2010).
52
Galimore v. City Univ. of New York Bronx Community College, 641 F.
Supp. 2d 269, 280 (S.D.N.Y. 2009) (quotation marks and citation omitted)
(alteration in original).
53
42 U.S.C. § 2000e-2.
54
McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 215 (2d
Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
-13-
discrimination.55 To do so, a plaintiff must show: “(1) he is a member of a
protected class; (2) he was qualified for the position he held; (3) he suffered an
adverse employment action; and (4) the adverse action took place under
circumstances giving rise to [an] inference of discrimination” based on his
membership in the protected class.56 However, such evidence need be no more
than “minimal” or “de minimis.”57 An adverse employment action is an action by
which a plaintiff “has suffered ‘a materially adverse change in his employment
status’ or in the terms and conditions of his employment.”58 Examples of adverse
employment actions include “a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, [or] significantly diminished material responsibilities.”59
If the plaintiff succeeds in establishing a prima facie case, the burden
then shifts to the employer to articulate a legitimate, nondiscriminatory reason for
55
See McDonnell Douglas, 411 U.S. at 802. See also Ruiz v. County of
Rockland, 609 F.3d 486, 491 (2d Cir. 2010).
56
Ruiz, 609 F.3d at 492.
57
See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.
2005).
58
Kessler v. Westchester Cnty. Dep’t of Soc. Serv’s, 461 F.3d 199, 207
(2d Cir. 2006) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d
Cir. 2004)).
59
Id. (quotation marks and citation omitted).
-14-
the adverse employment action.60 To do so, “the defendant must clearly set forth,
through the introduction of admissible evidence, the reasons for” its actions.61
Finally, if the employer articulates a nondiscriminatory reason for the
challenged action, the burden shifts back to the plaintiff to demonstrate that the
defendant’s explanation was pretextual and/or that discrimination was a motivating
factor.62 “Plaintiff bears the burden of proving not just pretext, but . . .
discrimination . . . and thus the burden of pointing the court to the existence of
evidence that would raise a disputed issue of material fact on this score.”63
Notably, in order to raise an issue of fact that is sufficiently material
to defeat a motion for summary judgment, the plaintiff must produce more than
simply some evidence; it must be enough evidence to support a rational finding
that the defendant’s explanation for the adverse action is actually a pretext to
60
See Ruiz, 609 F.3d at 492.
61
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).
62
See Ruiz, 609 F.3d at 493 (“A plaintiff can rebut the employer’s
proffered legitimate, nondiscriminatory reason by proving that discrimination
played a role in the employer’s decision[.]”). See also Patterson v. County of
Oneida, New York, 375 F.3d 206, 221 (2d Cir. 2004).
63
Perez v. New York State Office of Temp. & Disability Assistance,
No. 14 Civ. 1621, 2015 WL 3999311, at *4 (S.D.N.Y. June 30, 2015) (quotation
marks and citation omitted).
-15-
disguise discrimination.64 A plaintiff is required to do “more than cite to [his]
mistreatment and ask the court to conclude that it must have been related to [his]
race.”65 However, “[t]he factfinder’s disbelief of the reasons put forward by the
defendant . . . may, together with the elements of the prima facie case, suffice to
show intentional discrimination.”66 Therefore, the plaintiff can survive summary
judgment if he produces facts sufficient to permit a reasonable fact-finder to
disbelieve the defendant’s explanation in favor of the plaintiff’s explanation that
discrimination occurred.
2.
Hostile Work Environment Claim
A hostile work environment claim under Title VII requires a showing
that: (1) “that the discriminatory harassment was ‘sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment,’” and (2) “‘that a specific basis exists for imputing’ the objectionable
64
See id. (citation omitted). See also Mavrommatis v. Carey Limousine
Westchester, Inc., No. 10 Civ. 3404, 2011 WL 3903429, at *2 (2d Cir. Sept. 7,
2011).
65
Perez, 2015 WL 3999311, at *4 (citing Lizardo v. Denny’s, Inc., 270
F.3d 94, 104 (2d Cir. 2001)).
66
Id. (citation omitted). Accord Reeves v. Sanderson Plumbing Prod’s,
530 U.S. 133, 134 (2000).
-16-
conduct to the employer.”67 “[T]he plaintiff also must show that the hostile
conduct occurred because of a protected characteristic.”68
3.
Joint Employer Doctrine
“It is axiomatic that, in order to be liable for employment
discrimination under Title VII, an entity must have been the complainant’s
employer.”69 “Where ‘an employee, formally employed by one entity, who has
been assigned to work in circumstances that justify the conclusion that the
employee is at the same time constructively employed by another entity,’ the latter
entity may be liable to the employee as her joint employer.”70 The “joint employer
doctrine applies when separate legal entities have chosen to handle certain aspects
of their employer-employee relationships jointly.”71 In evaluating whether entities
constitute joint employers, courts “look at ‘commonality of hiring, firing,
67
Tolbert, 790 F.3d at 438-39 (quoting Alfani v. Costello, 294 F.3d 365,
373 (2d Cir. 2002)).
68
Id. at 439 (citation omitted).
69
Conde v. Sisley Cosmetics USA, No. 11 Civ. 4010, 2012 WL 1883508,
at *2 (S.D.N.Y. May 23, 2012).
70
Id. at *3 (quoting Arculeo v. On-Side Sales & Mktg., LLC, 425 F.3d
193, 198 (2d Cir. 2005)).
71
Lima v. Addeco, 634 F. Supp. 2d 394, 400 (S.D.N.Y. 2009) (quotation
marks and citation omitted).
-17-
discipline, pay, insurance, records, and supervision.’”72
B.
Breach of Contract
1.
Generally
Under New York law, a breach of contract claim requires: “(1) a valid
contract; (2) plaintiff’s performance; (3) defendant’s failure to perform; and (4)
damages resulting from the breach.”73 A breach of contract claim “that fails to
allege facts sufficient to show that an enforceable contract existed between the
parties is subject to dismissal.”74 Thus, the plaintiff must plead facts showing that
an enforceable contract existed, including facts surrounding the formation of the
contract, such as the contract’s date, major terms, names of the parties, and that the
party to be bound actually assented to the contract.75 In addition, “[f]ailure to
demonstrate [] non-speculative damages will result in summary judgment in favor
72
Id. (quoting N.L.R.B. v. Solid Waste Serv’s, 38 F.3d 93, 94 (2d Cir.
1994)).
73
MeehanCombs Global Credit Opportunities Funds, LP v. Caesars
Entm’t Corp., Nos. 14 Civ. 7091, 14 Civ. 7973, 2015 WL 221055, at *3 (S.D.N.Y.
Jan. 15, 2015) (citing Diesel Props S.r.l. v. Grey Stone Bus. Credit II LLC, 631
F.3d 42, 52 (2d Cir. 2011)).
74
Berman v. Sugo LLC, 580 F. Supp. 2d 191, 202 (S.D.N.Y. 2008)
(quotation marks and citation omitted).
75
See id.
-18-
of the defendant.”76 Further, “[a] written agreement or other written instrument
which contains a provision to the effect that it cannot be changed orally . . . cannot
be changed by an executory agreement unless [that] executory agreement is in
writing and signed by the party against whom enforcement . . . is sought.”77
2.
Preliminary Agreements
“[O]rdinarily, where the parties contemplate further negotiations and
the execution of a formal instrument, a preliminary agreement does not create a
binding contract.”78 As such, it is generally in two rare situations that courts have
recognized certain preliminary agreements as creating binding obligations rather
than mere unenforceable agreements to agree.79 The first is a “fully binding
preliminary agreement[], which [is] created when the parties agree on all the points
that require negotiation (including whether to be bound) but agree to memorialize
their agreement in a more formal document.”80 “Accordingly, a party may demand
76
Nature’s Plus Nordic A/S v. Natural Organics, Inc., 980 F. Supp. 2d
400, 414 (E.D.N.Y. 2013) (citing Upper Deck Co. v. Breakey Int’l, 390 F. Supp. 2d
355, 362 (S.D.N.Y. 2005)).
77
Baraliu v. Vinya Capital, L.P., 765 F. Supp. 2d 289, 297 (S.D.N.Y.
2011) (citing N.Y. GOL § 15-301).
78
Vacold LLC v. Cerami, 545 F.3d 114, 123-24 (2d Cir. 2008) (citing
Adjustrite Sys’s, Inc. v. GAB Business Serv’s, 145 F.3d 543, 548 (2d Cir. 1998)).
79
See id. at 124.
80
Id. (citation omitted).
-19-
performance of the transaction even though the parties fail to produce the more
elaborate formalization of the agreement.”81 In evaluating whether a fully binding
preliminary agreement has been created, courts consider: “(1) whether there has
been an express reservation of the right not to be bound in the absence of a writing;
(2) whether there has been partial performance of the contract; (3) whether all of
the terms of the alleged contract have been agreed upon; and (4) whether the
agreement at issue is the type of contract that is usually committed to writing.”82
“[T]here is a strong presumption against finding binding obligation[s] in an
agreement that include[s] open terms . . . and explicitly anticipate[s] future
preparation and execution of contract documents.”83
The second type, which has been called a “binding preliminary
commitment,” may be formed where “the parties agree on certain major terms, but
leave other terms open for further negotiation.”84 Under these circumstances, the
parties are bound only to the obligation to negotiate the open issues in good faith in
81
All R’s Consulting v. Pilgrims Pride Corp., No. 06 Civ. 3601, 2008
WL 852013, at *10 (S.D.N.Y. Mar. 28, 2008) (citing Adjustrite, 145 F.3d at 548)).
82
CAC Grp. v. Maxim Grp., 523 Fed. App’x 802, 803-04 (2d Cir. 2013)
(citation omitted).
83
Vacold, 545 F.3d at 128 (quotation marks and citation omitted)
(alterations in original).
84
Id. at 124 (quotation marks and citation omitted).
-20-
an attempt to reach the . . . objective within the agreed framework”; if they “fail to
reach such a final agreement after making a good faith effort to do so, there is no
further obligation” and no right to demand performance.85 In determining whether
either type of preliminary agreement exists, the “ultimate” factor is “the intent of
the parties: whether the parties intended to be bound, and if so, to what extent.”86
“To discern that intent a court must look to the words and deeds [of the parties,]
which constitute objective signs in a given set of circumstances.”87
C.
Conspiracy to Commit Fraud
Because New York does not recognize an independent tort of
conspiracy, liability for conspiracy requires the establishment of the independent
underlying tort.88 Under New York law, the elements of a fraud claim are: “(1)
misrepresentation or omission of a material fact; (2) made deliberately or
knowingly . . . ; (3) with the intent to defraud; (4) reasonable reliance on the
representation; and (5) pecuniary damages or loss.”89 “[A]t all stages, including at
85
Id.
86
Id. at 125.
87
Adjustrite, 145 F.3d at 548-49 (quotation marks and citations omitted)
(alteration in original).
88
See Stokes v. Lusker, 425 Fed. App’x 18, 22 (2d Cir. 2011).
89
M&T Mortg. Corp. v. White, 736 F. Supp. 2d 538, 560-61 (E.D.N.Y.
2010) (citing Herzfeld v. JPMorgan Chase Bank, 354 Fed. App’x 488, 489 (2d Cir.
-21-
summary judgment,” a plaintiff is required to prove “each element . . . by clear and
convincing evidence.”90
V.
DISCUSSION
A.
First, Second, and Third Claims: Title VII Claims Against NYIT
Balk’s First, Second, and Third Claims allege that NYIT
discriminated against him on the basis of race, religion, and national origin,
respectively. Because the standard and relevant facts for evaluating each of these
claims is identical, I will address them together.
1.
Balk Cannot Establish a Prima Facie Case of
Discrimination
Balk argues that NYIT’s handling of the newspaper articles, decision
to remove him from NYIT Bahrain, and failure to renew his teaching contract for a
third term constituted unlawful discrimination against him because these actions
were based on his status as a “a white, non-Muslim . . . American citizen.”91
Balk’s speculative and conclusory allegations of discrimination are inadequate,
however, to establish a prima facie case of discrimination under Title VII, which
requires that a plaintiff show, inter alia, that he suffered an adverse employment
2009)).
90
Id. (citation omitted).
91
Compl. ¶ 35.
-22-
action that “took place under circumstances giving rise to [an] inference of
discrimination” due to his membership in a protected class.92 Balk cannot raise an
inference of discrimination merely by presenting evidence that he was treated
badly or unfairly. Rather, he must demonstrate – which he fails to do – that the
alleged discriminatory treatment against him was based on a protected
characteristic.
Balk points to three categories of purported discrimination, none of
which support an inference of discrimination against him. First, Balk alleges that
NYIT “creat[ed] a hostile work environment through the publication of . . .
defamatory articles in the Bahraini news.”93 This argument fails, as Balk has
presented no evidence that any of the articles – all published by independent news
sources and none of which identify Balk – were drafted, published, or republished
by NYIT.94 At times, Balk also suggests that NYIT should be liable for not
defending him against the newspaper allegations and other criticism he endured.95
92
Ruiz, 609 F.3d at 492.
93
Compl. ¶ 61. Accord id. ¶¶ 64, 68.
94
In fact, at least one of the articles was published only after Balk had
left Bahrain, and thus could not have influenced his “work environment.”
95
See, e.g., Plaintiff’s Memorandum of Law in Support of His Motion
for Summary Judgment (“Balk Mem.”) at 9.
-23-
Title VII does not, however, require employers to protect their employees from
public backlash – even unfounded backlash. It simply prohibits employers from
making employment decisions for discriminatory reasons. Likewise, Balk
provides no evidentiary support for his claim that NYIT’s response to the Student
Complaint, newspaper articles, or campus attitudes about him was motivated by
discriminatory animus.96 He simply draws upon his perceived mistreatment by
NYIT to conclude that NYIT’s strategy was driven by discrimination.
Second, Balk alleges that NYIT’s decisions to remove him from NYIT
Bahrain and escort him out of the country had discriminatory motivations. As
Balk puts it, “in summarily casting out Balk, based upon its belief that NYIT
Bahrain students and others would not accept that Balk had done nothing wrong
(because he was non-Muslim and American) . . . . [,] NYIT’s actions and inaction
constitute actionable discrimination.”97 He also suggests that NYIT discriminated
against plaintiff “to avoid a negative backlash from its Muslim customer base in
96
Balk also suggests that NYIT acted in a discriminatory manner in
failing to inform him of Dr. Hussein’s February 25, 2008 email. However, there is
no evidentiary support for the claim that NYIT’s decision-making with respect to
Dr. Hussein’s email was related to any of Balk’s protected characteristics.
97
Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion
for Summary Judgment at 3.
-24-
Bahrain.”98 Balk has not, however, presented any evidence supporting his claim
that NYIT’s actions were based on his protected characteristics. In fact, he admits
to speaking with a group of students on February 18, 2008 about certain
differences between Western and Islamic culture – a conversation that offended
some students and resulted in negative publicity for himself and NYIT (and in
response to which NYIT removed him from NYIT Bahrain). Balk’s theory that
NYIT bowed to public pressure in order to placate its students has nothing to do
with discriminatory animus and Balk has offered nothing suggesting that NYIT
would have treated a non-white, Muslim, and/or non-American citizen creating a
similar controversy any differently.
Third, Balk claims that NYIT’s failure to renew his teaching
agreement, and the circumstances surrounding that decision, give rise to an
inference of discrimination. These allegations are insufficient to demonstrate
discriminatory animus on the part of NYIT as Balk fails to present any evidence
that its decision not to renew his contract was related to his race, religion, or
national origin. Again, he simply points to the fact that his contract was not
renewed as proof that he was discriminated against.
2.
98
NYIT’s Legitimate, Non-Discriminatory Reasons for Its
Decisions
Id. at 24 n.44.
-25-
Even if Balk had established a prima facie case of discrimination,
NYIT has proffered legitimate, non-discriminatory reasons for its actions: that its
response to the Student Complaint and ensuing publicity, removal of Balk from
NYIT Bahrain, and decision not to renew Balk’s teaching agreement were business
decisions made to protect Balk and the school.
Upon receiving the Student Complaint, NYIT immediately launched
an internal investigation and attempted to mediate the situation between Balk and
its students. NYIT explains that, faced with continued uproar about Balk’s alleged
anti-Islamic sentiments, it ultimately found it prudent to discharge Balk from his
teaching duties and facilitate his exit from Bahrain. In fact, Balk’s moving papers
– which quote Dr. Giuliano’s February 26, 2008 email that “perception is reality
and we cannot afford this sort of negative perception”99 – support the inference that
NYIT’s decision regarding Balk’s continued presence at NYIT Bahrain was based
on the school’s business concerns. Whether the allegation that Balk was antiIslamic was true is irrelevant to the Title VII inquiry about NYIT’s decision to
remove Balk from NYIT Bahrain – what is relevant is NYIT’s good-faith belief
that its students and the public were offended.
In addition, NYIT explains that it did not renew Balk’s teaching
99
Plaintiff’s Memorandum of Law in Reply and in Further Support of
His Motion for Summary Judgment at 2.
-26-
agreement because, having determined that it was unwise and unsafe for him to
continue at NYIT Bahrain, there were no suitable positions open for him at any of
its campuses – an explanation that is entirely unrelated to Balk’s status as a white,
non-Muslim, American citizen. NYIT offers evidence that, before reaching the
decision not to renew Balk’s contract, it attempted to relocate him to another NYIT
campus – including by exploring options in New York, China, and Jordan. NYIT
also asserts that Balk was not singled out during the renewal process but that it was
unable to renew contracts for eighteen of its Middle East faculty members between
2005 and 2014, including four individuals who were non-white and twelve
individuals who were not United States citizens. Because NYIT provides
legitimate business reasons for its actions, the burden shifts back to Balk to show
that these proffered reasons are pretextual and that these actions were, in fact,
motivated by unlawful discrimination.
3.
Balk Has Offered No Evidence of Pretext
Balk attempts to argue that NYIT’s stated reasons for its actions were
pretext for intentional discrimination, but he does not point to any evidence to
support this position. Instead, he concludes that NYIT’s proffered reasons were
pretextual and asks the Court to do the same. Accordingly, because Balk fails to
satisfy his burden of establishing Title VII liability, his First, Second, and Third
-27-
Claims against NYIT are dismissed.
B.
Fourth Claim: Breach of Contract
Balk also argues that NYIT breached three contracts with him: (1) the
Second Teaching Agreement; (2) a verbal agreement to compensate him for
“overload” courses taught in addition to those required by the Second Teaching
Agreement; and (3) another verbal two-year teaching agreement that was to
commence on June 1, 2008 (the “Alleged Third Teaching Agreement”).100 His
breach of contract claim must be dismissed, however, as NYIT fully performed the
Second Teaching Agreement – the only valid contract of the three under which
Balk seeks recovery.
1.
NYIT Did Not Breach the Second Teaching Agreement
Balk offers a number of unsuccessful arguments in support of his
claim that NYIT breached the Second Teaching Agreement.101 First, Balk claims
that NYIT prematurely terminated the Second Teaching Agreement – but this
agreement expired according to its own terms on May 31, 2008, pursuant to which
Balk received his entire annual compensation of $86,000 (despite not teaching any
courses after February 2008). Thus, Balk has no claim for breach of the Second
100
See Compl. ¶¶ 72-81.
101
See id. ¶ 77.
-28-
Teaching Agreement as it was not terminated prior to its scheduled end-date and he
was fully compensated under it.
Nevertheless, Balk also claims that NYIT somehow violated Sections
3 and 5 of the Second Teaching Agreement by preventing him from being
compensated for “overload” courses. But neither Section 3 nor Section 5 – let
alone any other section of the Second Teaching Agreement – addresses overload
courses or payments. He further contends that NYIT violated Section 8 of the
Second Teaching Agreement by failing to provide him with NYIT employee
benefits.102 Section 8 clearly states, however, that Balk “will not receive any NYIT
employee benefits.”103 As NYIT was under no obligation to provide Balk with
NYIT employee benefits, it cannot be liable for not doing so.104
2.
Any Verbal Overload Agreement Is Unenforceable
Balk also suggests that NYIT breached a separate verbal agreement,
pursuant to which he was to receive $150/hour for any “overload” courses taught
102
See 4/7/07 Consulting Agreement ¶¶ 3, 5.
103
See id. ¶ 8 (emphasis added).
104
Balk offers several additional arguments in support of his claim that
NYIT breached the Second Teaching Agreement, none of which have any basis in
that agreement and all of which are without merit.
-29-
in excess of those required by the Second Teaching Agreement.105 Because
Subsections 10(a) and 10(b) of the Second Teaching Agreement prohibit oral
modifications and collateral agreements to that contract, any such verbal agreement
about overload courses – even if one had been made – would be unenforceable.106
3.
The Alleged Third Teaching Agreement Did Not Create
Any Contractual Obligations
Furthermore, Balk claims that NYIT breached an Alleged Third
Teaching Agreement, which he describes as a two-year teaching contract that was
to commence on June 1, 2008 and contain “[s]ubstantially the same” terms as the
Second Teaching Agreement.107 It is undisputed that this Alleged Third Teaching
Agreement was never reduced to a signed writing. Nevertheless, Balk seeks to
hold NYIT liable for not formalizing this Alleged Third Teaching Agreement,
which he argues was created through the conversations he had on the subject with
Dean Revelas and Professor Smith.
Because the evidence demonstrates, however, that the parties did not
intend to be bound by these conversations, at most, they gave rise to an
unenforceable agreement to agree between NYIT and Balk. In fact, Balk’s own
105
See, e.g., Balk 56.1 Resp. ¶¶ 155-156.
106
See 4/7/07 Consulting Agreement ¶¶ 10(a)-(b).
107
Balk Dep. at 91. Accord Compl. ¶ 79; Balk Mem. at 26-27.
-30-
March 11, 2008 email to Professor Smith reveals his understanding that any
conversations he had regarding the Alleged Third Teaching Agreement were
speculative and non-binding on NYIT. Further, Balk was well aware that NYIT
routinely requires written teaching agreements, having signed two such agreements
in previous years. In addition, Balk’s description of the Alleged Third Teaching
Agreement is cursory and lacks material terms such as salary, job responsibilities,
and benefits, providing further indication that the parties anticipated future
approvals and documentation before any contractual obligations would be formed.
C.
Sixth, Seventh, and Eighth Claims: Title VII Claims Against
NYIT as a Joint Employer with Infotec
Balk also argues that employees of Infotec discriminated against him
based on his protected characteristics and that NYIT should be liable for Infotec’s
allegedly discriminatory acts because it served as a “joint employer” with Infotec.
Balk’s Title VII claims against Infotec are identical to his Title VII claims against
NYIT. For the reasons stated above, Balk has produced no evidence of
discrimination. Without a basis for imposing liability, NYIT cannot be held liable
for the conduct of Infotec employees. In any event, because NYIT and Infotec
were parties to an arm’s length contract under which Infotec provided certain
services to NYIT, NYIT lacked the requisite knowledge and control over Infotec to
be held liable for Infotec employees’ actions. Accordingly, as asserted against
-31-
NYIT, Balk’s Sixth, Seventh, and Eighth Claims to hold NYIT liable for the acts
of Infotec are dismissed.
D.
Ninth Claim: Conspiracy to Commit Fraud
Balk’s final claim against NYIT is that it conspired with Infotec to
“defraud [him] into leaving [NYIT Bahrain] on February 25, 2008, pursuant to Dr.
Hussein’s decision on February 25, 2008[] to intentionally ban [him] from the
Bahrain campus.”108 To bolster this theory, Balk argues that NYIT’s fraudulent
representations included its failure to inform him of Dr. Hussein’s February 25,
2008 email, in which Dr. Hussein alleges that Balk had anti-Islamic content on his
website and advises that Balk be removed from NYIT Bahrain. Balk also claims
that the February 28, 2008 meeting with the Iskandrani sisters was “a ruse and part
of a fraudulent scheme . . . when NYIT and Infotec had already made the decision
to remove [him] from Bahrain.”109
However, Balk presents no evidence – let alone clear and convincing
evidence – that NYIT acted with the intent to defraud him. Instead, he points to
the series of events that culminated in his removal from NYIT Bahrain and asks the
Court to infer that these events were connected by a fraudulent scheme. For
108
Compl. ¶ 105.
109
Id.
-32-
example, Balk’s argument that he was not informed of Dr. Hussein’s February 25,
2008 email does not establish that NYIT defrauded him in neglecting to mention it.
In fact, there is no evidence that NYIT’s decision to remove Balk from NYIT
Bahrain was based on Dr. Hussein’s February 25, 2008 email or made prior to the
February 28, 2008 meeting with the Iskandrani sisters. Nor is there any evidence
that the February 28, 2008 meeting was a “ruse” rather than part of NYIT’s efforts
to defuse the situation between Balk and the Iskandrani sisters. In sum, beyond his
own speculation, Balk offers nothing to support his claim that NYIT conspired to
defraud him. As such, Balk’s Ninth Claim against NYIT is also dismissed.
VI.
CONCLUSION
For the foregoing reasons, defendant NYIT’s motion for summary
judgment is GRANTED in full and plaintiff’s motion for summary judgment is
DENIED in full. Plaintiff’s First, Second, Third, Fourth, Sixth, Seventh, Eighth,
and Ninth Claims are dismissed against NYIT, and NYIT is dismissed from this
case. Plaintiff’s Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Claims survive to
the extent that they are asserted against other defendants. The Clerk of the Court is
directed to close these motions (Docket Nos. 172 and 180).
-33-
-AppearancesFor Plaintiff:
Randy M. Kornfeld, Esq.
Kornfeld & Associates P.C.
250 Madison Avenue, 8th Floor
New York, NY 10016
(212) 759-6767
Ridley M. Whitaker, Esq.
Law Offices of Ridley M. Whitaker
830 Third Avenue, 5th Floor
New York, NY 10022
(212) 218-5656
Vincent E. Bauer, Esq.
Law Offices of Vincent E. Bauer
112 Madison Avenue, 5th Floor
New York, NY 10016
(212) 575-1517
For Defendant NYIT:
Douglas Peter Catalano, Esq.
Neil G. Sparber, Esq.
Samantha E. Beltre, Esq.
David Jason Kessler, Esq.
Norton Rose Fulbright US LLP
666 5th Avenue
New York, NY 10103
(212) 318-4000
-35-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?