Schoenhals v. Dowling College Chapter, New York State United Teachers, Local #3890 et al

Filing 60

MEMORANDUM OF DECISION & ORDER re Plaintiff's 27 Motion to Amend the Complaint. For the foregoing reasons, the Plaintiff's motion to amend is denied in its entirety. The Plaintiff may proceed with his cause of action for breach of the collective bargaining agreement. SEE ATTACHED DECISION for details. It is So Ordered by Judge Arthur D. Spatt on 3/20/2019. (Coleman, Laurie)

FILED 
CLERK 

1:26 pm, Mar 20, 2019

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
MARTIN SCHOENHALS,

MEMORANDUM OF
DECISION & ORDER
2:15-cv-2044 (ADS)(ARL)

Plaintiff,
-againstDOWLING COLLEGE,
Defendant.
---------------------------------------------------------X
APPEARANCES:
Advocates for Justice, Chartered Attorneys
Co-Counsel for the Plaintiff
225 Broadway, Suite 1902
New York, NY 10007
By:
Arthur Z. Schwartz, Esq.,
Laine A. Armstrong, Esq., Of Counsel
Law Office of Rachel J. Minter
Co-Counsel for the Plaintiff
345 Seventh Avenue
New York, NY 10001
By:
Rachel J. Minter, Esq., Of Counsel
Ingerman Smith, LLP
Attorneys for the Defendant
167 Main Street
Northport, NY 11768
By:
Christopher J. Clayton, Esq.,
David F. Kwee, Esq., Of Counsel
SPATT, District Judge.

On April 15, 2015, Martin Schoenhals, (“Schoenhals” or the “Plaintiff”) commenced this
action against Dowling College (the “College” or the “Defendant”), the Dowling College
Chapter, New York State United Teachers, Local 3890 (the “Union”) and New York State
United Teachers, AFT, AFL-CIO (“NYSUT”). The Plaintiff alleged that the Union and NYSUT
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breached the duty of fair representation, and that the College breached a collective bargaining
agreement. These allegations stem from the actions leading up to the Plaintiff’s termination
from employment with the College in January 2015.
On February 17, 2016, the Plaintiff filed the instant motion to amend his complaint,
seeking to add (1) a breach of contract claim under New York law against the College; (2) an age
discrimination claim under the Age Discrimination in Employment Act of 1967 (the “ADEA”),
29 U.S.C. § 621, et seq., against the College; (3) an age discrimination claim under the New
York State Human Rights Law (the “NYSHRL”) against the College; and (4) a breach of the
duty of fair representation under the NYSHRL against the Union.
In August 2016, attorneys for NYSUT and the Union informed the Court that their clients
had reached a settlement with the Plaintiff. Soon after, the Plaintiff agreed to discontinue the
case as to claims against NYSUT and the Union.

The instant motion was reinstated in

September 2016 and fully briefed later that year.
On March 14, 2017, after receiving the College’s notice of bankruptcy filing, the Court
stayed the case pending the outcome of the College’s bankruptcy proceeding. In January 2018,
the bankruptcy court lifted the stay and restored the case to the active docket.
Since the Union and NYSUT are no longer parties in this action, the Plaintiff’s request to
amend the complaint to add a breach of the duty of fair representation under the NYSHRL
against the Union & NYSUT is denied as moot.
I. BACKGROUND
For the purposes of deciding the instant motion to amend, all facts alleged are assumed
truthful and are construed in a light most favorable to the Plaintiff. The Court notes that it will
not consider the 10-page “Statement of Facts” in the Defendant’s opposition memorandum. This
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recitation of the Defendant’s version of the facts is outside the allegations contained in the
complaint and contains no citation to documentary evidence.

Accordingly, it may not

appropriately be considered in a motion to amend.
In September 1993, the Plaintiff was hired by the College as a full-time, tenure-track
Assistant Professor of Anthropology and Chair of the Anthropology Department. Six years later,
he received tenure and was promoted to Associate Professor. In 2006, he was promoted to
Professor. During the course of his employment with the College, Schoenhals was an active
member of the Union, a local chapter of NYSUT. As of February 17, 2016, he was 54 years old.
Beginning in 2012, the College entered a chaotic and troubling period which was
purportedly precipitated by years-long mismanagement by the College’s administration. Since
2005, the College has employed seven short-term presidents who were paid substantial severance
after termination. In 2013 alone, the College paid over $2 million in severance payments. The
Plaintiff also contends that the Board of Trustees (the “Board”) misused operating funds and
engaged in self-interested dealings. Further, according to the Plaintiff, the Board also fostered an
environment that created and preserved a disparity between high-paying administrators and
under-compensated faculty.

Union officers were frequently appointed to administrative

positions within the College.
In April 2012, the College requested that the Union allow a renegotiation of the collective
bargaining agreement (“CBA”) that covered the faculty. It was in effect since 2007. The
College asserted to the Union that the desire to revise the CBA was driven by a series of
financial pressures, and claimed that if the Union refused to acquiesce, it would terminate all
non-tenured faculty. However, the College did not provide the financial disclosures required by
the CBA to support its financial hardship argument. The parties ultimately agreed to reopen
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negotiations and approved an amendment to the CBA, the Memorandum of Agreement (“2012
MOA”). The 2012 MOA provided for compensation and benefits cuts that included a reduction
of health benefits and a cessation of College contributions to the faculty’s retirement plan. It
also contained a provision to prevent future reduction of faculty without the existence of
“financial exigencies.” The Plaintiff was an outspoken opponent of the 2012 MOA and voted
against the measure.
Following the adoption of the 2012 MOA by the Union, Schoenhals filed an unfair labor
practice claim with the National Labor Relations Board against the Union as well as one with the
New York State Attorney General’s Office against the College and Board.
In the Summer of 2014, the Board terminated the then-president and appointed a group of
Union members to the administration, including the Union’s chief negotiator, the Liaison
Committee Chair and a member of the executive committee.

In September, the Union’s

president also resigned and was replaced by Mark Greer (“Greer”), who was allegedly a vocal
critic of the Union. Soon after, the College again pressured the Union into re-opening CBA
negotiations. A faculty meeting was held and the faculty voted to re-open negotiations. During
this meeting, Schoenhals requested an audit of the College’s financials but was told by Greer that
it would take too long. An audit was never conducted by the Union. Although the Plaintiff
questioned the veracity of the College’s claims of financial difficulty, this allegation was likely
baseless, as the College subsequently declared bankruptcy.
The renegotiated MOA (the “2014 MOA”) contained the following changes:
(a) … the MOA simply omitted the entire section of the CBA providing for tenure
for senior faculty. … ;
(b) [t]he Union surrendered its right to verify claims of financial exigency made
by the College with new language containing a blanket acknowledgment by the
Union that it accepts the College' s claims;
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(c) [it] eliminated the requirements of notice to a terminated faculty member and
severance pay linked to years of service; [and]
(d) [it] required that savings of almost $5 million per year had to be realized in a
period of only eight months and obtained exclusively from the faculty budget line
– with $2,600,000 of the savings to come from a faculty reduction-in-force
(“RIF”) - without any plans to cut operating costs or reduce salary and benefits of
over-paid administrative staff.
Dkt. 29-1 at 10.

It also created the Early Retirement Incentive Program (“ERIP”), which

provided financial incentives to full-time faculty members who achieved a minimum tenure of
service and elected to retire. Along with ERIP, the 2014 MOA provided for full-time faculty
reductions and detailed the formula used to determine who would be subject to termination The
2014 MOA was ratified by the faculty in November 2014. For Union members who were
interested in taking advantage of ERIP, they had to resign before November 17, 2014, the day
before the College would release a list of those who would be terminated. Those who did not
utilize ERIP by the deadline could still take advantage of a less lucrative version (“ERIP II”) if
they elected to do so by November 21, 2014.
Prior to November 21, 2014, the Plaintiff was informed that he was marked for
termination. Schoenhals calculated his own metrics based on the formula detailed in the 2014
MOA and determined that he should not have been terminated. In a November 20, 2014 meeting
with the then-President and Union officers, he was told that his numbers were “healthy.”
Schoenhals presented Greer with his calculations and was told by those in the meeting that they
needed to recheck their calculations. The Plaintiff asserts that he did not elect ERIP II by the
deadline because he was led to believe that the College and the Union were re-evaluating his
situation. After the ERIP II deadline, the Plaintiff sent multiple emails to Union executives and
the then-President to demonstrate the mistakes made in formula calculations.

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On December 5, 2014, the Plaintiff received a letter, dated November 21, 2014 and
postmarked December 2, 2014, terminating his employment effective January 2, 2015.
Schoenhals was unable to receive the benefits of either ERIP or ERIP II.
The Plaintiff now alleges, in this revised complaint, that he was terminated because of his
age. “To replace the older, experienced senior faculty who had been targeted …, the college
hired less experienced adjunct professors.” Dkt. 29-1 at 15. Although Schoenhals names other
colleagues in the amended complaint who were not terminated, he only states that they were
“younger” than the Plaintiff; their ages are not revealed.
II. DISCUSSION
A. The Legal Standard
FED. R. CIV. P. 15(a), which typically governs a motion to amend a complaint, states, in
relevant part, “a party may amend its pleading only with the opposing party’s written consent or
the court’s leave. The court should freely give leave when justice so requires.” FED. R. CIV. P.
15(a)(2). Unless there is a showing of bad faith, undue delay, futility or undue prejudice to the
non-moving parties, the district court should grant leave to amend. Foman v. Davis, 371 U.S.
178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) (“In the absence of any apparent or declared
reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.—the leave should, as
the rules require, be freely given.”); Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.
2001) (“Leave to file an amended complaint shall be freely given when justice so requires, and
should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the
non-movant, or futility.” (internal citations and quotation marks omitted)).
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A proposed

amendment is futile if the claim-at-issue cannot withstand a motion to dismiss, pursuant to Rule
12(b)(6). Positano v. Zimmer, No. 12-CV-2288, 2013 WL 12084482, at *2 (E.D.N.Y. Dec. 9,
2013) (Spatt, J.). The decision on whether to grant a motion to amend rests within the sound
discretion of the district court. Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566,
603-04 (2d Cir. 2005); Hemphill, 141 F.3d at 420; John Hancock Mut. Life Ins. Co. v. Amerford
Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994).
B. ADEA Claim
The Plaintiff seeks to amend the complaint to add a claim under the ADEA. It is
unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age; [or] to limit, segregate, or classify
his employees in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of such
individual’s age …” 29 U.S.C. § 623(a); see also Lorillard v. Pons, 434 U.S. 575, 577, 98 S. Ct.
866, 55 L. Ed. 2d 40 (1978) (“The ADEA broadly prohibits arbitrary discrimination in the
workplace based on age.”).
1. The 90-Day Filing Requirement
The Defendant contends that the Plaintiff’s ADEA claim is futile because Schoenhals
failed to timely file his claim.
“[W]ithin 90 days after the issuance of a right-to-sue letter ‘a civil action may be brought
against the respondent named in the charge.’” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S.
147, 149, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984) (quoting 42 U.S.C. § 200e-5(f)(1)); accord
Miller v. Hous. Auth. of City of New Haven, No. 3:13-CV-1855, 2014 WL 2871591, at *5 (D.
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Conn. June 24, 2014) (“Title VII requires that a plaintiff exhaust her administrative remedies by
timely filing a complaint with the EEOC, obtaining a right-to-sue letter, and filing suit within
ninety days of the receipt of that letter.”); Toolan v. Bd. of Educ. Of City of New York, No. 02
Civ. 6989, 2003 WL 22015437, at *2 (S.D.N.Y. Aug.25, 2003) (“To be timely, actions for
violations of Title VII, the ADA, and the ADEA must be filed within 90 days after receipt of a
right to sue letter from the EEOC.”). The statutory period begins to run on the date the claimant
receives the right-to-sue letter. See Tiberio v. Allergy Asthma Immunology of Rochester, 664
F.3d 35, 38 (2d Cir. 2011); Skibinski v. Zevnik, Horton, Guibord, McGovern, Palmer & Fognani,
LLP, 57 F. App’x 900, 901 (2d Cir. 2003). If a complaint is not filed within the statutory 90-day
period, the complaint is subject to dismissal. See Johnson v. Trs. of Columbia Univ., No. 00 Civ.
8118, 2003 WL 2013371, at *3 (S.D.N.Y. Apr. 25, 2003), report & recommendation adopted,
No. 00 Civ. 8118, 2003 WL 21433455 (S.D.N.Y. June 16, 2003).
In the instant case, the Plaintiff fails to plead in his proposed amended complaint that he
ever received a right to sue letter from the EEOC. However, the Defendant has attached a rightto-sue letter from the EEOC that was mailed on October 15, 2015. The Plaintiff has not
indicated when he received this letter; however, the letter specifies that it was received on
October 19, 2015. Therefore, the Plaintiff was required to raise his ADEA claim on or before
January 19, 2016. Schoenhals’ instant motion to amend, which seeks to add an ADEA claim,
was filed on February 17, 2016, approximately one month after the statutory period expired.
The Plaintiff contends that his failure to file his motion to amend during the statutory
period is discharged by Magistrate Judge Arlene R. Lindsay’s November 16, 2015 scheduling
order (the “Scheduling Order”), which set a deadline of February 22, 2016 for the
commencement of motion practice for joinder of additional parties or amendment of pleadings.
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See Dkt. 23. Since the Scheduling Order provided Plaintiff until February 22, 2016 to file the
amended complaint, the Plaintiff believes that he should not be held to the earlier statutory
period.
The Second Circuit has sustained the strict enforcement the 90-day statutory period. See
Tiberio, 664 F.3d at 38 (“Because [the plaintiff] initiated this action on February 28, 2011—93
days after her presumptive receipt of the right-to-sue letter—the District Court properly held that
her claim is time-barred.”). Yet, if a party is precluded by a court order or procedural rule from
complying with the statute, equitable tolling may be appropriate. Mendoza v. Lainesita Rest.
Corp., No. 12-cv-4188, 2014 WL 3732811 (E.D.N.Y. July 25, 2014) is instructive. At the time,
Judge Hurley’s Individual Rules required that prior to filing a motion to amend, the moving party
must request a pre-motion conference. Mendoza filed that request on December 20, 2012, prior
to the 90-day period’s expiration. By the time the district court held a pre-motion conference
and Mendoza filed her motion to amend, the statutory period had expired. The Court held that
since the “[p]laintiff would have been precluded from moving to amend her complaint had she
not first requested a pre-motion conference[,]” equity required the Court to toll the filing
requirement. Id. at *6.
In the instant case, the Plaintiff was not precluded from moving to amend his complaint.
Although Magistrate Judge Shields set a scheduling order that allowed the Plaintiff to amend the
complaint past the deadline, the Plaintiff is not excused from compiling with the statutory
requirements.

There is nothing in the record that indicates that Magistrate Judge Shields

intended to toll any applicable statutory requirements nor is there any record that the Plaintiff’s
counsel ever raised the deadline prior to the Scheduling Order. Rather, the parties themselves
proposed the dates in the Scheduling Order. The Plaintiff had every opportunity to file the
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amended complaint prior to the deadline and would have been fully compliant with the
Scheduling Order had he elected to do so. The Plaintiff chose to file the instant motion to amend
after the requisite deadline; he was not precluded from doing so by this Court. In Mendoza, the
Court tolled the filing requirement because the plaintiff was barred from complying with the
statute by Judge Hurley’s individual rules. Here, the Plaintiff elected to let the deadline pass.
The equitable considerations discussed in Mendoza are absent from the facts articulated by the
Plaintiff in this case.
Schoenhals argues that the 90-day period is only to initiating a federal discrimination
lawsuit and does not cover amending a pleading to add a discrimination claim. This argument is
without merit. 42 U.S.C. § 200e-5(f)(1)’s statutory filing period is satisfied when a claim is
asserted, regardless of whether it is through an original complaint or an amended complaint. See
Haughton v. Town of Cromwell, No. 3:14-cv-1974, 2017 WL 902847, at *2 (D. Conn. Mar. 7,
2017) (barring the plaintiff’s retaliation claim because the motion to amend was filed seventeen
months after receiving a right-to-sue letter). The Plaintiff was required to file his motion to
amend within 90 days after receiving his right-to-sue letter, and failed to do so.
Finally, the Plaintiff asserts that even if his amendment is untimely, it relates back to the
original complaint, which was filed on April 15, 2015. “Under FED. R. CIV. P. 15(c), the central
inquiry is whether adequate notice of the matters raised in the amended pleading has been given
to the opposing party within the statute of limitations by the general fact situation alleged in the
original pleading.” Stevelman v. Alias Research, Inc., 174 F.3d 79, 86 (2d Cir. 1999) (internal
citations and quotation marks omitted). However, the original complaint makes no reference to
the Plaintiff’s age. Rather, it explicitly alleges that he was terminated because “he was a vocal
opponent of decisions and actions by Union leadership[.]” Dkt. 1 at 12. There are no facts
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alleged in that complaint that put the Defendant on notice of a potential age discrimination claim.
See, e.g., McNeil v. Capra, No. 13-CV-3048, 2015 WL 4719697, at *7 (S.D.N.Y. Aug. 7, 2015)
(denying the plaintiff’s motion to amend because he “has not provided any information on the
substance of his claim, and the Court cannot determine whether the claim meets the requirements
of Rule 15(c).”).
Accordingly, the Plaintiff’s ADEA claim is time barred. Allowing him to amend his
complaint to include this cause of action would be futile.
2. Failure to State a Claim
Assuming arguendo, that the Plaintiff’s ADEA claim was not time barred, the proposed
amended complaint fails to state a claim for a viable cause of action.
An ADEA claim may be premised on two theories of discrimination: disparate treatment
and disparate impact. See Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d Cir. 1992). The
Plaintiff’s cause of action is premised on both theories.
In order to state a claim of disparate treatment under the ADEA, a plaintiff must plead
that: (1) he was within the protected age group; (2) he was qualified for the position; (3) he was
subject to an adverse employment action; and (4) the adverse action occurred under
circumstances giving rise to an inference of discrimination. Terry v. Ashcroft, 336 F.3d 128,
137-138 (2d Cir. 2003). This claim is analyzed using the same burden-shifting framework as
that used in Title VII cases. See id. However, a plaintiff is not required to make a prima facie
case of discrimination or succeed under the burden-shifting framework of McDonnell Douglas at
the pleading stage. See Swierkiewicz v. Sorema N.A., 534 U. S. 506, 510, 122 S. Ct. 992, 152 L.
Ed. 2d 1 (2002). To succeed at the pleading stage,
[a] complaint must … allege the essential elements of an employment
discrimination claim—that plaintiff suffered discrimination on the basis of
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protected status. A plaintiff must allege that he suffered an adverse employment
action. To qualify as adverse, an action must cause a materially adverse change in
the terms and conditions of employment, and not just mere inconvenience.
Moreover, a plaintiff is required to set forth factual circumstances from which
discriminatory motivation for such action can be inferred. Allegations supporting
motive may include preferential treatment given to similarly situated individuals
or remarks that convey discriminatory animus.
Mabry v. Neighborhood Defender Serv., 769 F. Supp. 2d 381, 392 (S.D.N.Y. 2011) (internal
citations and quotation marks omitted). Further, the Plaintiff must allege that age was the “but
for” cause of the adverse action. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87
(2d Cir. 2015).
To support Schoenhals’ claim that age was the “but for” cause of his termination, he
contends that, rather than properly applying the methodology negotiated in the 2014 MOA, the
Defendant improperly calculated elderly, tenured professors’ metrics to support termination.
However, the complaint lacks a factual basis to reach this conclusion. The amended complaint
merely alleges that the Plaintiff is over 40 years of age and that he and others were replaced by
younger, less experienced professors.

Schoenhals does not mention the age of any other

professors, regardless of whether they were terminated or retained. Such conclusory pleading
precludes the Court from “draw[ing] the reasonable inference that the defendant is liable ofr the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009). Without even knowing the ages of the individuals involved, it is impossible for this
Court to conclude that the terminations were caused by age discrimination.
Without providing the facts to allow the Court to draw a reasonable inference that
Schoenhals was terminated because of his age, the Plaintiff has failed to state a claim based on
disparate treatment.

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The Plaintiff also asserts that the College’s actions surrounding the 2014 MOA were
actionable under a disparate impact theory. A disparate impact claim is based on facially neutral
employment practices that impacts one class of employees harsher than another. Meacham v.
Knolls Atomic Power Lab., 554 U.S. 84, 95-96, 128 S. Ct. 2395, 171 L. Ed. 2d 283 (2008);
Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971)
(explaining that disparate impact claims target “practices that are fair in form but discriminatory
in operation”); Maresco, 964 F.2d at 115 (“The disparate impact doctrine, developed under Title
VII, is also applicable to cases under the ADEA.”).
To succeed in such a claim, the Plaintiff does not have to allege discriminatory intent.
See Diehl v. Xerox Corp., 933 F. Supp. 1157, 1164 (W.D.N.Y. 1996). Yet, “it is not enough to
simply allege that there is a disparate impact on workers, or point to a generalized policy that
leads to such an impact. Rather, the employee is ‘responsible for isolating and identifying the
specific employment practices that are allegedly responsible for any observed … disparities.’”
Smith v. City of Jackson, 544 U.S. 228, 242, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005) (quoting
Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656, 109 S. Ct. 2115, 104 L. Ed. 2d 733
(1989) (emphasis in original)).
In the instant case, the Plaintiff asserts that “[t]he 2014 MOA procedure for targeting
faculty for termination was written to disproportionally impact older employees.” Dkt. 52 at 6.
This alleges that “older employees” were singled out for early termination due to their age
because of the Defendant’s discriminatory animus toward older professors. These facts cannot
constitute the basis for a disparate impact claim as they largely restate Schoenhals’ disparate
treatment claims. The Plaintiff identifies an intentionally discriminatory policy, the 2014 MOA
procedures, and argues that the policy had a disparate impact on the elderly. A policy that is
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written with the intent to discriminate cannot form the basis of a disparate impact claim. See,
e.g., Maresco, 964 F.2d at 115 (“[A]llowing the disparate impact doctrine to be invoked as [the
plaintiff] proposes would simply provide a means to circumvent the subjective intent
requirement in any disparate treatment case.”); Wado v. Xerox Corp., 991 F. Supp. 174, 186
(W.D.N.Y. 1998) (“[R]egardless of the label plaintiffs attach to their claims, they are at bottom
disparate treatment claims only.”), aff’d, 196 F.3d 358 (2d Cir. 1999). Schoenhals fails to allege,
even in a conclusory fashion, that any facially neutral employment practice had a disparate
impact against those employees over the age of 40. The Plaintiff’s attempt to reframe his
disparate treatment claim into disparate impact is unconvincing. Accordingly, the Plaintiff fails
to state a disparate impact claim under the ADEA.
Allowing him to amend his complaint to include an ADEA discrimination claim would
be futile.
C. Breach of Contract Claim
Under New York law, there are four elements of a breach of contract claim: “(1) the
existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach
of contract by the defendant, and (4) damages.” Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d
Cir. 1996); accord Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir.
2011); Palmetto Partners, LP v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921
N.Y.S.2d 260, 264 (N.Y. App. Div. 2011).
Under New York law, a plaintiff must identify the specific contractual provision or
provisions that were allegedly breached. M&T Bank Corp. v. LaSalle Bank Nat’l Ass'n, 852 F.
Supp. 2d 324, 334 (W.D.N.Y. 2012) (collecting cases); Wolff v. Rare Medium, Inc., 210 F. Supp.
2d 490, 494 (S.D.N.Y. 2002), aff'd, 65 F. App'x 736 (2d Cir. 2003); Levy v. Bessemer Trust Co.,
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N.A., No. 97 Civ. 1785, 1997 WL 431079, at *5 (S.D.N.Y. July 30, 1997). See, e.g., Childers v.
New York and Presbyterian Hosp., 36 F. Supp. 3d 292, 312 (S.D.N.Y. 2014) (dismissing breach
of contract claim because the complaint only alleged, in a conclusory fashion, that there was “an
express contractual relationship between the parties,” and did not provide any further details
regarding the alleged agreement). “Under New York law, ‘before the power of law can be
invoked to enforce a promise, it must be sufficiently certain and specific so that what was
promised can be ascertained.’” Sang Lan v. Time Warner, Inc., No. 11 Civ. 2870, 2014 WL
764250, at *2 (S.D.N.Y. Feb. 25, 2014) (quoting Joseph Martin, Jr., Delicatessen, Inc. v.
Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541 (N.Y. 1981)).
In the proposed amended complaint, the Plaintiff merely asserts that the Defendant
“breached the collective bargaining agreement by stripping its long-term, senior faculty, who had
all been previously granted tenure protection for the duration of their careers, of tenure.” Dkt.
29-1 ¶ 73. This claim is not clarified by the Plaintiff’s briefing materials, which are bereft of any
discussion of his breach of contract claim.
Accordingly, the Plaintiff has failed to state a claim for breach of contract. See Stadt v.
Fox News Network LLC, 719 F. Supp. 2d 312, 318 (S.D.N.Y. 2010) (“The [plaintiff] must allege
the specific provisions of the contract upon which the breach of contract is based. A claim for
breach of contract cannot be sustained simply by a conclusory statement that the accused
breached a contract.”). See e.g., Eastern Materials Corp. v. Mitsubishi Plastics Composites Am.,
Inc., No. 2:17-cv-1034, 2017 WL 4162309, at *6 (E.D.N.Y. Sept. 19, 2017) (Spatt, J.)
(dismissing breach of contract claim because “the Plaintiffs failed to properly specify what the
agreement between the Plaintiffs and the Defendant consisted of and which provisions of any
such agreement were violated”); Silverman v. Household Fin. Realty Corp. of New York, 979 F.
15

Supp. 2d 313, 319 (E.D.N.Y. 2013) (“To survive a motion to dismiss, a plaintiff must
specifically allege the agreement between the parties, the terms of that agreement, and what
provisions of the agreement were breached.”); Kraus v. Visa Int’l Serv. Ass’n, 304 A.D.2d 408,
756 N.Y.S.2d 853 (N.Y. App. Div. 2003) (dismissing a breach of contract claim because
“plaintiff failed to allege the breach of any particular contract provision”).
Amending the complaint to add a cause of action for breach of contract would be futile.
D. State Law Claims
The Plaintiff also brings claims for age discrimination under the NYSHRL. “[C]laims
brought under [the NYSHRL] are analytically identical to claims brought under Title VII.”
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011) (internal
citations omitted). A district court “may decline to exercise supplemental jurisdiction” if it “has
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

In

employing its discretion, the district court balances the “values of judicial economy,
convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.
Ct. 614, 98 L. Ed. 2d 720 (1988). In the Second Circuit, “when the federal claims are dismissed
the state claims should be dismissed as well.” In re Merrill Lynch Ltd. P'Ships Litig., 154 F.3d
56, 61 (2d Cir. 1998) (internal citations and quotation marks omitted). “Although this is not a
mandatory rule, the Supreme Court has stated that ‘in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors ... will point toward declining
jurisdiction over the remaining state-law claims.” Id. (citing Cohill, 484 U.S. at 350 n.7). As the
Supreme Court noted in United Mine Workers v. Gibbs, “[n]eedless decisions of state law should
be avoided both as a matter of comity and to promote justice between the parties, by procuring

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for them a surer-footed reading of applicable law.” 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed.
2d 218 (1966).
As this Court has denied the Plaintiff’s request to amend his complaint to add a federal
age discrimination claim, the Court declines to exercise supplemental jurisdiction over the
Plaintiff's state law claims. See 28 U.S.C. § 1367(c) (“The district courts may decline to exercise
supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over
which it has original jurisdiction ...”); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998);
Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994); Castellano v. Bd. of Trs. of Police
Officers' Variable Supplements Fund, 937 F.2d 752, 758 (2d Cir. 1991). See, e.g., Fernandes v.
Moran, No. 2:17-cv-3430, 2018 WL 2103206, at *11 (E.D.N.Y. May 7, 2018) (Spatt, J.)
(declining to exercise supplemental jurisdiction after all federal claims are dismissed); Calverton
Hills Homeowners Ass’n, Inc. v. Nugent Building Corp., No. 2:17-cv-03916, 2017 WL 6598520,
at *13 (E.D.N.Y. Dec. 26, 2017) (Spatt, J.) (same).
Accordingly, the Plaintiff’s request to amend the complaint to add a discrimination claim
under the NYSHRL is denied.
III. CONCLUSION
For the foregoing reasons, the Plaintiff’s motion to amend is denied in its entirety. The
Plaintiff may proceed with his cause of action for breach of the collective bargaining agreement.

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It is SO ORDERED:
Dated: Central Islip, New York
March 20, 2019
__/s/ Arthur D. Spatt__

ARTHUR D. SPATT
United States District Judge

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