Balk v. New York Institute of Technology et al

Filing 222

OPINION AND ORDER: For the foregoing reasons, Balk's motion for reconsideration is DENIED. The Clerk of the Court is directed to close this motion [Dkt. No. 217]. (As further set forth in this Order) Ordered by Visiting Judge VJ-Shira Ann Scheindlin on 11/9/2015. (DelSignore, Angela)

September 16, 2015, NYIT’s motion for summary judgment was granted in full
and Balk’s motion for summary judgment was denied in full, and all claims against
NYIT were dismissed (the “September 16, 2015 Opinion”).
On September 24, 2015, Balk filed a motion for reconsideration of the
summary judgment decision with respect to the First, Second, Third, Sixth,
Seventh, Eighth and Ninth Claims.1 For the following reasons, Balk’s motion is
DENIED.
II.

LEGAL STANDARD
“Reconsideration of a court’s previous order is an ‘extraordinary

remedy to be employed sparingly in the interests of finality and conservation of
scarce judicial resources.’”2 “‘[R]econsideration will generally be denied unless
the moving party can point to controlling decisions or data that the court
overlooked.’”3 Typical grounds for reconsideration include “an intervening change
of controlling law, the availability of new evidence, or the need to correct a clear

1

Balk does not seek reconsideration of the dismissal of his breach of
contract claims.
2

Oji v. Yonkers Police Dep’t, No. 12 Civ. 8125, 2013 WL 4935588, at
*1 (S.D.N.Y. Sept. 11, 2013) (quoting Parrish v. Sollecito, 253 F. Supp. 2d 713,
715 (S.D.N.Y. 2003)).
3

Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d
Cir. 2012) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
-2-

error or prevent manifest injustice.”4
III.

DISCUSSION5
Balk contends that “[t]he court has overlooked factual matters, rules

and precedents cited by Balk which would change the Court’s decision.”6
However, Balk fails to meet the strict standard for reconsideration because he
raises no new or overlooked facts, intervening changes in the law, or clear errors
creating the possibility of manifest injustice. Instead, Balk simply reargues points
that were considered and rejected by the September 16, 2015 Opinion.7
A.

First, Second, and Third Claims: Title VII Claims Against NYIT
With respect to the First, Second, and Third Claims, which allege

4

Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (quotation omitted). Accord Shrader, 70 F.3d at 257
(describing grounds for reconsideration as “matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court”).
5

This Opinion incorporates the factual background and applicable law
set forth in the September 16, 2015 Opinion.
6

Corrected Version of Balk’s Memorandum of Law in Support of
Motion for Reconsideration (“Pl. Mem.”) at 3.
7

The record on summary judgment was extensive, and included the
parties’ combined six memoranda of law, Rule 56.1 Statements, 134 exhibits
submitted by Balk, and 62 exhibits submitted by NYIT. As discussed herein,
although neither the September 16, 2015 Opinion nor this Opinion provides a
summary of all facts and arguments contained in the voluminous record in this
case, the Court has considered all legal arguments asserted by the parties and all
relevant, material facts contained in the parties’ submissions.
-3-

discrimination by NYIT in violation of Title VII, Balk attempts to re-litigate the
issue of Title VII liability. Title VII only provides relief if “a discrimination
plaintiff withstand[s] the three-part burden-shifting [analysis] laid out by
McDonnell Douglas Corp. v. Green.”8 The September 16, 2015 Opinion held that
Balk had failed each of these prongs. Balk now asks the Court to revisit the record
and reach the opposite conclusion, but Balk does not point to any facts or law
warranting a different outcome.
1.

Prima Facie Case of Discrimination

The September 16, 2015 Opinion concluded that Balk failed to
establish the prima facie case “that the alleged discriminatory treatment against
him was based on a protected characteristic.”9 In doing so, the September 16, 2015
Opinion considered and rejected Balk’s arguments regarding NYIT’s decisionmaking over the Student Complaint against Balk, newspaper articles published in
the aftermath of the Student Complaint, removal of Balk from NYIT Bahrain, and
non-renewal of Balk’s teaching agreement.10 Specifically, the September 16, 2015
Opinion observed,
8

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)).
9

9/16/15 Opinion at 23.

10

See id. at 22-25.
-4-

[Balk] 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 nonwhite, Muslim, and/or non-American citizen creating a similar
controversy any differently.11
Now, Balk re-asserts two of his prior arguments – neither of which support
reconsideration of the September 16, 2015 Opinion.
First, Balk re-alleges that (1) the Iskandrani sisters disregarded the
instructions of NYIT’s Dean of Students “to submit their written complaint only to
his office”12 and instead submitted the Student Complaint to NYIT Bahrain’s
Director of Admissions, Nouf Al Khalifa, because they “did not trust nonMuslims”13 and (2) NYIT did not “direct Al Khalifa to refrain from interacting
with the Iskandrani sisters or from further dissemination of false stigmatizing
discriminatory accusations concerning Balk after Balk had notified NYIT of the
unauthorized distribution of the [Student Complaint].”14 From these allegations,

11

Id. at 25.

12

Pl. Mem. at 17.

13

Id.

14

Id. at 18.
-5-

Balk again contends that “NYIT knew of the unauthorized distribution of the
Student Complaint based upon Balk’s protected characteristics as a non-Muslim”15
and that this evidence creates “an inference that [NYIT’s] decisions to remove
Balk from Bahrain and to terminate his employment were also motivated by a
desire to placate the discriminatory animus of . . . its Muslim students.”16
However, neither of these allegations – both of which were considered
and rejected by the September 16, 2015 Opinion – supports the inferential leap that
Balk again urges this Court to make. As an initial matter, NYIT cannot be liable
for religious preferences expressed by the Iskandrani sisters, who were students at
the school. Further, Title VII does not require employers to protect their
employees from perceived mistreatment – it simply prohibits employers from
making adverse employment decisions for discriminatory reasons. As such,
NYIT’s alleged failure to curb what Balk deems the “unauthorized” distribution of
the Student Complaint (and/or any attendant rumors) does not give rise to an
inference that NYIT’s decisions about Balk’s employment were motivated by
discriminatory animus. In fact, as noted in the September 16, 2015 Opinion, the
record demonstrates quite the opposite: that “upon receiving the Student

15

Id. at 8.

16

Id. at 17.
-6-

Complaint, NYIT immediately launched an internal investigation and attempted to
mediate the situation” but “ultimately found it prudent to discharge Balk from his
teaching duties and facilitate his exit from Bahrain.”17
Second, Balk contends that the Court failed to appreciate visiting
NYIT Professor Christopher Moylan’s statements about his allegedly
discriminatory experiences while teaching at NYIT Bahrain.18 Moylan’s testimony,
however, provided no basis for inferring that NYIT discriminated against Balk.
Rather, Moylan conceded that he was teaching in New York – not at NYIT Bahrain
– when the Student Complaint and relevant decisions regarding Balk’s employment
occurred.19 As such, Moylan’s testimony was limited to his views “concerning . . .
NYIT’s preference of Muslim faculty over non-Muslim faculty”20 during his own
time at NYIT Bahrain. Accordingly, the September 16, 2015 Opinion properly
found that the general opinion of one individual without any personal knowledge of
the circumstances surrounding Balk’s removal failed to support the inference that

17

9/16/15 Opinion at 26.

18

See 7/27/10 Statement of Christopher Moylan Before the New York
State Division of Human Rights (“Moylan Statement”), Ex. 79 to 12/15/14
Affidavit of Balk’s Attorney, Ridley M. Whitaker, at 5 (explaining that Moylan
served as a visiting professor at NYIT Bahrain for a total of three five-week terms).
19

See id. at 17.

20

Pl. Mem. at 18. Accord Moylan Statement at 9.
-7-

NYIT’s specific actions regarding Balk were discriminatory.
2.

Pretext

The September 16, 2015 Opinion further held that NYIT had met its
burden of “proffer[ing] legitimate, non-discriminatory reasons for its actions”21 and
that Balk had failed to meet his burden of establishing that NYIT’s reasons were
pretext for discrimination. Balk also disagrees with this holding, and recapitulates
his arguments that NYIT’s proffered reasons for its actions were, in fact, pretextual.
The September 16, 2015 Opinion observed that, according to NYIT,
“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.”22 Additionally, that Opinion noted
NYIT’s explanation that it “did not renew Balk’s teaching 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.”23
The September 16, 2015 Opinion found these reasons to be legitimate and nondiscriminatory as they are “entirely unrelated to Balk’s status as a white, non-

21

9/16/15 Opinion at 26.

22

Id.

23

Id. at 26-27.
-8-

Muslim, American citizen.”24 Balk repeats several of his arguments that NYIT’s
explanations are pretextual, but none support reconsideration.
First, Balk claims that NYIT’s decision to remove him from NYIT
Bahrain could not have been related to safety concerns because “NYIT has never
provided any evidence that Balk was ever in any danger in Bahrain.”25 This
argument is belied by Balk’s own statements, including his February 26, 2008 email
to NYIT Professor Robert Smith in which Balk expressed “‘concern[] about [his]
physical safety.’”26
Second, Balk asserts that “[t]here was a teaching position available to
Balk in Jordan” and that NYIT’s alleged failure to offer it to him establishes
pretext.27 Beyond his own speculation, however, Balk offers no evidence that
NYIT chose not to offer him the position – let alone that any such decision was
made because of Balk’s race, religion, or national origin. Rather, as noted in the
September 16, 2015 Opinion, the record contains significant evidence – including

24

Id. at 27.

25

Balk’s Memorandum of Law in Reply and Further Support of Motion
for Reconsideration (“Reply Mem.”) at 6.
26

9/16/15 Opinion at 9 (citing 2/26/08 Email from Balk to Smith, Ex. N
to 12/15/14 Affidavit of NYIT’s Attorney, Samantha Beltre (“Beltre Aff.”), at
DB01484).
27

Pl. Mem. at 21.
-9-

emails and testimony – substantiating NYIT’s efforts to place Balk at an alternative
campus.28
Third, Balk argues that “NYIT could not possibly have believed what
it had been told by [NYIT Middle East Chairman] Dr. [Mohammad] Hussein,”29
who wrote to NYIT President Dr. Edward Giuliano on February 25, 2008
explaining, inter alia, that the school was investigating a complaint that Balk had
made anti-Islamic comments and that Balk “has been against Islam for quite a long
time.”30 This argument is irrelevant, however, given that NYIT’s proffered reasons
for its actions do not hinge on Dr. Hussein’s email. In fact, Balk’s own deposition
testimony corroborates NYIT’s legitimate, non-discriminatory explanation for its
actions, during which he explained that:
[a] significant portion of the student body . . . would have been
very unhappy if NYIT had not gotten rid of the faculty who alleged
– who they alleged or it was alleged – made inappropriate
28

Balk also argues that this Court should not have considered Carol
Jablonsky’s affidavit and supporting documentation because this evidence is
precluded under Federal Rule of Evidence 37(c)(1). I need not address whether
this evidence was improperly introduced as evidence, as the September 16, 2015
Opinion did not rely on it. Rather, this evidence – discussed as a single reference
to the number and demographic composition of faculty members whose contracts
were not renewed – was cited only as additional support for my conclusions that
Balk had failed to establish pretext. See 9/16/15 Opinion at 27.
29

Pl. Mem. at 19.

30

Plaintiff’s Response to Defendant NYIT’s Rule 56.1 Statement ¶ 47.
-10-

comments to students and the false allegations in the press. In
other words, that can’t stand. You can’t have a faculty person
there with these allegations floating around.31
Fourth, Balk contends that NYIT’s reasons are pretextual as there was
no “overt uproar” as a result of the Student Complaint.32 Again, this argument is
unavailing as NYIT’s proffered reasons – which are based on business and safety
concerns – do not turn on the existence of an overt uproar.
In any event, because Balk has not established the threshold prima
facie case of discrimination, his First, Second, and Third Claims fail even before
reaching the issue of pretext.
B.

Sixth, Seventh, and Eighth Claims: Title VII Claims Against NYIT
as a Joint Employer with Infotec
Balk’s Sixth, Seventh, and Eighth Claims – which sought to impose

Title VII liability on NYIT as a “joint employer” with Infotec – are identical to his
First, Second, and Third Claims against NYIT. Accordingly, having held that the
record did not provide an evidentiary basis for Balk’s First, Second, and Third

31

6/25/12 Balk Deposition, Ex. C to Beltre Aff., at 45-46. NYIT also
stated that it did not give credence to Dr. Hussein’s allegations, explaining that
“[t]he investigation normally would have been . . . whether to believe Professor
Balk or not but we believed him. There were never any allegations that NYIT
disbelieved him.” 4/10/15 Transcript of Oral Argument at 38:4-7 (NYIT Attorney
Neil Sparber).
32

Reply Mem. at 6.
-11-

Claims, the September 16, 2015 Opinion also dismissed Balk’s Sixth, Seventh, and
Eighth Claims to the extent that they were asserted against NYIT.
Balk now argues that his Sixth, Seventh, and Eighth Claims should not
have been dismissed because he, not NYIT, moved for summary judgment on these
claims.33 As Balk acknowledges, however, “‘[w]hen a party makes a motion for
summary judgment, the Court may search the record and grant summary judgment,
not just to the moving party, but to any party who may be entitled to it.’”34 This is
appropriate where “‘the party against whom summary judgment is rendered has had
a full and fair opportunity to meet the proposition that there is no genuine issue of
material fact to be tried.’”35
33

The Third Amended Complaint designates the Sixth, Seventh, and
Eighth Claims as Title VII claims “Against Infotec as a Joint Employer with
NYIT.” Thus, prior to Balk’s motion for summary judgment, it may not have been
clear to NYIT that it faced liability under Balk’s Sixth, Seventh, and Eighth
Claims. In NYIT’s Opposition to Balk’s motion for reconsideration, NYIT states
that “the sixth, seventh, and eighth claims for relief are only against Infotec and
that is the reason NYIT did not move for summary judgment on those claims for
relief.” Defendant NYIT’s Memorandum of Law in Opposition to Plaintiff’s
Motion for Reconsideration at 12 n.4.
34

First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109,
114-15 (2d Cir. 1999) (quoting Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir.
1996)).
35

Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011)
(quoting Schwan-Stabilo Cosmetics GmbH & Co. v. Pacific Link Int’l Corp., 401
F.3d 28, 33 (2d Cir. 2005)). Accord Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986) (observing that “district courts are widely acknowledged to possess the
-12-

Because Balk was aware that he was required to put forth all possible
evidence to defeat NYIT’s motion for summary judgment with respect to his First,
Second, and Third Claims under Title VII, it follows that he also had a full and fair
opportunity to litigate the identical Title VII issues raised by his Sixth, Seventh, and
Eighth Claims. Thus, given that the Court reviewed the extensive summary
judgment record and found no basis for imposing Title VII liability with respect to
the First, Second, and Third Claims, Balk’s (identical) Sixth, Seventh, and Eighth
Claims were also properly rejected. In fact, failing to dismiss the Sixth, Seventh,
and Eighth Claims – which were effectively resolved by the September 16, 2015
Opinion – would have permitted further, unnecessary litigation of these claims and
constituted a waste of judicial resources.36
C.

Ninth Claim: Conspiracy to Commit Fraud
Balk also argues that the Court should reconsider the dismissal of his

Ninth Claim, which alleged that NYIT “defraud[ed] Balk into leaving [NYIT
power to enter summary judgment sua sponte, so long as the losing party was on
notice that she had to come forward with all her evidence”).
36

The September 16, 2015 Opinion also noted that Balk’s motion for
summary judgment on the Sixth, Seventh, and Eighth claims failed because NYIT
and Infotec did not qualify as joint employers under Lima v. Addecco, 634 F. Supp.
2d 394, 400 (S.D.N.Y. 2009). Balk now also asks this Court to reconsider the
existence of a joint employer relationship. Having held, however, that the Sixth,
Seventh, and Eighth Claims fail to meet the threshold requirement of Title VII
discrimination, I need not opine on the joint employer issue again.
-13-

Bahrain] on February 25, 2008, pursuant to Dr. Hussein’s decision on February 25,
2008[] to intentionally ban Balk from the Bahrain campus.”37 The September 16,
2015 Opinion held that Balk failed to meet his burden of presenting clear and
convincing evidence that NYIT acted with the intent to defraud him, explaining that
the evidence does not support finding
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.38
Reconsideration of this holding is unwarranted, as Balk simply reasserts facts and arguments that were considered and rejected by the September 16,
2015 Opinion. First, Balk again argues that the decision to remove Balk from
NYIT Bahrain was made prior to the February 28, 2008 meeting, pointing to Dr.
Hussein’s February 25, 2008 email and Dr. Giuliano’s testimony regarding
discussions he had with other NYIT administrators after the Student Complaint was
filed but before the February 28, 2008 meeting. As I stated in the September 16,
2015 Opinion, however, the evidence does not establish when the removal decision
37

Third Amended Complaint ¶ 105.

38

9/16/15 Opinion at 33.
-14-

was made and thus cannot satisfy Balk’s burden of presenting clear and convincing
evidence that there was a fraudulent agreement to remove him from Bahrain.
Second, Balk argues that he was defrauded because NYIT administrators indicated
that he would be able to return to Bahrain within three weeks. Even assuming that
NYIT administrators did suggest that Balk was only to be temporarily removed
from NYIT Bahrain, Balk provides no evidence – let alone clear and convincing
evidence – that they did so with the deliberate intent to defraud him. In fact, Balk’s
motion for reconsideration cites Dr. Giuliano’s testimony that “it was [NYIT’s]
understanding at that time that [Balk] was going to return to Bahrain.”39
VI.

CONCLUSION
For the foregoing reasons, Balk’s motion for reconsideration is

DENIED. The Clerk of the Court is directed to close this motion [Dkt. No. 217].

39

Pl. Mem. at 12. Balk also argues that the “special facts doctrine,”
which governs whether a party had a duty to disclose material omissions, applies to
his relationship with NYIT. See First Hill Partners, LLC v. Bluecrest Capital
Mgmt., 52 F. Supp. 3d 625, 637 (S.D.N.Y. 2014) (“If a plaintiff is proceeding
under a material omission theory, it must further allege that the defendant had a
duty to disclose material information.” (quotation marks and citation omitted)).
Having held, however, that no material misrepresentation or omission occurred, it
is unnecessary to reach the “special facts” analysis.
-15-

-AppearancesFor Plaintiff:
Randy M. Kornfeld, Esq.
Kornfeld & Associates P.C.
250 Madison Avenue, 8th Floor
New York, NY 10016
[phone]
Ridley M. Whitaker, Esq.
Law Offices of Ridley M. Whitaker
830 Third Avenue, 5th Floor
New York, NY 10022
[phone]
Vincent E. Bauer, Esq.
Law Offices of Vincent E. Bauer
112 Madison Avenue, 5th Floor
New York, NY 10016
[phone]
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
[phone]

-17-