Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Sank v. City University of New York, Not Reported in F.Supp.2d (2002)

2002 WL 523282
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
PROFESSOR DIANE SANK, Plaintiff,
v.
THE CITY UNIVERSITY OF NEW
YORK, Joseph Murphy, et al., Defendants
No. 94 CIV. 0253(RWS).

|

April 5, 2002.

Attorneys and Law Firms
Diane Sank, Englewood Cliffs, NJ, Plaintiff Pro Se.
Honorable Eliot Spitzer, Attorney General of the State of New
York, New York, By Steven L. Banks, Assistant Attorney
General, Of Counsel, for Defendants.
Opinion

judgment is granted. The defendant's Rule 39(a) motion is
also granted.

Parties
Pro se plaintiff Sank is a white Jewish woman, over the age
of 66, who walks with the aid of a cane and uses a wheeled
luggage cart due to a disability resulting from an accident
in 1985. Sank is a Professor of Anthropology who has been
employed by CCNY since 1968. Sank is a resident of New
Jersey and a citizen of the United States.
CUNY is a public higher education system comprised of
several senior and community colleges throughout New York
City and its boroughs.
CCNY is one of the colleges that makes up CUNY.
Sowande, Associate Counsel in CUNY's General Counsel's
Office, was the CUNY Freedom of Information Appeals
Officer.

OPINION
SWEET, D.J.
*1 Defendants City University of New York (“CUNY”),
City College of the City of New York (“CCNY”) and
Beverly Sowande (“Sowande”) have moved pursuant to Rule
56 of the Federal Rules of Civil Procedure for summary
judgment and pursuant to Fed.R.Civ.P. 39(a) to strike the jury
demand of Plaintiff Diane Sank (“Sank”). Sank cross moved
under Fed.R.Civ.P. 56(f) to deny or postpone the summary
judgment motion until she is able to complete necessary
discovery.
Sank has filed this action pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), codified at 42 U.S.C.
§§ 2000e et seq., alleging that defendants removed her as
chairperson of the Anthropology Department based on her
gender, race, religion, and age, and retaliated against her
after she filed a complaint of discrimination with the New
York City Human Rights Commission. Plaintiff also alleges
a violation of New York's Freedom of Information Law
(“FOIL”), N.Y. Pub. Officers L. § 84 et seq., and breach of
contract.
For the reasons below, Sank's Rule 56(f) motion is granted
as to her Title VII claims, but denied as to her other claims.
As to the other claims, the defendants' motion for summary

Facts
The facts below are drawn from the plaintiff's complaint, the
defendants' summary judgment motion and previous opinions
of this Court. Plaintiff has not yet submitted a statement
of undisputed facts, and the facts below are not limited to
undisputed facts.
From 1969 to 1972, Sank served as chairperson of the
CCNY Anthropology Department (the “Department”). After
her term, faculty members Eleanor Leacock and June Nash
each served as chairperson for alternate terms from 1972 to
1987. Both Leacock and Nash are white females.
Early in 1987, Dr. Charlene McDermott, the provost of
CCNY, initiated a college-wide review of departments,
including the Department. As part of this process, Sank
and other members of the Department selected two outside
anthropologists to evaluate the Department in December
1987.
In May 1987, the six full-time faculty members of the
Department elected Sank to a three-year term as departmental
chairperson. Plaintiff's salary did not change as a result
of her election. Instead, Sank received a reduction in her
teaching duties in order to accommodate the administrative
functions the chairperson was required to perform. Sank
claims that prior to the election CCNY President Bernard

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Sank v. City University of New York, Not Reported in F.Supp.2d (2002)

W. Harleston (“Harleston”) threatened to shut down the
Department because it contained no black faculty, and that
she was elected to address this issue.
*2 On December 3 and 4, 1987, the two outside
anthropologists, Professor Owen Lynch of New York
University and Professor William Pollitzer of the University
of North Carolina, toured the Department. Sank organized the
visit, escorting the reviewers through the library and facilities
and scheduling interviews between the reviewers and each
faculty member.
Lynch and Pollitzer released a report on January 13, 1988 (the
“Report”) based on their observations at CCNY. They stated:
Unfortunately,
and
perhaps
in
part because of their individual
accomplishments, the members of the
department are unable to cooperate
and govern themselves. Over the
years mutual distrust has grown
because of personal misunderstandings,
misinterpretations, and misperceptions
of the interests and intentions of
one another. During her tenure, Prof.
Leacock was able to hold these problems
in check and was a focus whom all
respected and trusted. Her departure
left the department to its own selfdestructive devices. Unable to govern
itself it turned to Prof. Sank to rescue
it by electing her Chair. Unfortunately,
immediately after her election she, too,
being a member of the family, became a
victim of its collective neurosis. Despite
her sincere efforts to create a new
morale, to promote student enrollment
and department publicity, to seek from
the administration added funds, and to
write the departmental assessment for our
review, the department which elected her
withdrew its collective support. Without
that support it has been impossible
for her to accomplish anything and
she had been reduced to a symbol
of the department's collective malaise.
The responsibility for the department's
present distemper, disarray, and drift is
that of the department as a whole.

The reviewers proposed “an immediate, but interim, solution
of semi-receivership for the department.” They recommended
that an anthropologist from CUNY's Graduate Center be
appointed as an interim chairperson with responsibility for
initiating a search for an outside educator to serve as
chairperson. The Report specifically identified Professors
Dell Jones (“Jones”) and Jane Schneider (“Schneider”) from
the CUNY Graduate Center and Professor Lucie Saunders
(“Saunder”) from Lehman College as good candidates for the
interim post. Jones is a black male; Schneider and Saunders
are white females.
On February 8, 1997, the Department held a special faculty
meeting to discuss the findings and recommendations set
forth in the Report. The meeting ended without a clear
consensus on an appropriate course of action. However, three
of the six faculty members (Professors Fremont Besmer
(“Besmer”), Warren Kinzey (“Kinzey”), and June Nash
(“Nash”)) voted to recognize the “immediate need for outside
advisory input to the Department,” and recommended that
“Prof. Dell Jones be, or be among those who provide, that
advising input.”
The Department later submitted two separate responses to
the Report to the CCNY Provost. Sank submitted the official
response on February 16, 1988. It recognized the division
in the anthropology faculty but concluded that a semireceivership would be “an illegal, dangerous precedent and is
unwarranted.” Four of the six faculty members submitted a
separate memorandum to the CCNY Provost, recommending
that Jones immediately replace Sank as chairperson.
*3 Harleston subsequently met with the Department to
discuss the proposal to appoint a new chairperson. Three of
the five faculty members present voiced their approval of
the recommendation. Plaintiff and Professor Arthur Spears
dissented. Nash, who had supported Sank's removal in the
February 18, 1998 response to the Report, was not present at
the meeting.
On April 27, 1988, Harleston wrote to Joseph Murphy,
the CUNY Chancellor at the time, stating his decision to
remove Sank as chairperson effective June 1, 1988 and to
recommend that the Board of Trustees appoint Jones as acting
chairperson for the period from June 1, 1988 through August
31, 1989. Harleston sent a separate letter to Sank informing
her of his decision. In 1988, the CUNY By-laws permitted
CCNY's president to remove a departmental chairperson “as
the interests of the college may require” after conferring with

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Sank v. City University of New York, Not Reported in F.Supp.2d (2002)

members of the department. Sank claims that this incident
was the first time in CCNY's history that a department chair
was removed, rather than quietly asked to resign.
On May 11, 1988, the office of the Ombudsman at CCNY
wrote to Harleston expressing surprise at his having taken
action with respect to Sank prior to meeting with the
Ombudsman. That letter announced a May 18, 1988 faculty
meeting to consider the matter of the President's actions with
respect to Sank and the Department.
Sank promptly pursued administrative remedies complaining
about her removal. After being informed in a letter dated
May 24, 1988 that the Professional Staff Congress of CCNY
would not take the complaint to grievance because “it lacked
merit,” Sank filed a Step One Grievance against Harleston,
the Provost, and the Dean of Social Science of CCNY for
improperly removing her as Department chair. This letter did
not mention allegations of discrimination. 1
Sank filed a complaint with the New York City Human Rights
Commission in late August 1988 (the “Commission”). On
October 21, 1989, Sank filed a verified complaint with the
Commission charging CUNY, CCNY and Harleston with
sex discrimination. A copy of the verified complaint was
filed with the Equal Employment Opportunities Commission
(“EEOC”) on September 12, 1989 for dual filing purposes.
On October 13, 1988, Sank was informed by letter that
her grievance had been rejected. On December 9, 1988,
Sank received a letter from the CCNY Acting Director
of Affirmative Action advising her that “the Grievance
Committee has not found a basis for your grievance of gender
discrimination.”
On June 8, 1989, the Department held a meeting to elect a
new Chairperson, as Jones declined reappointment. The vote
was to appoint Besmer, a white male. 2
On June 27, 1989, Sank filed an amendment to her
verified complaint withe Commission, adding charges of race
discrimination.
On July 13, 1989, as part of a campus wide modernization
project, 3 the architect in charge, Anthony Rodriguez
(“Rodriguez”) 4 issued a memorandum setting forth a
schedule for the reallocation of a significant amount of space
within seven buildings at CCNY. As part of this reallocation

of space, the Department lost the use of two rooms to
the Department of Computer Science, including the room
housing the plaintiff's research laboratory (“NAC 7/105”).
According to the memorandum, the contents of NAC 7/105
and NAC 7/106, the other room lost by the Department,
were to be packed and moved into NAC 7/103, a remaining
Department room, on July 23-24, 1989. At the time Rodriguez
issued the memorandum, he claims he did not know Sank and
had no knowledge of her claims of discrimination.
*4 Besmer, as acting chairperson, sent Sank a memorandum
dated July 20, 1989 notifying her of the impending move.
Sank testified that she received the letter, at her house, on
July 27, 1989-after the contents of her laboratory had already
been packed and moved across the hall into NAC 7/103. She
claims that the laboratory contained invaluable, irreplaceable
contents, many of which were her own personal property.
Further, she claims that a 1989-90 faculty investigation
determined that the administration did not have to take and
should not have taken her laboratory.
Sank was offered assistance to recreate her laboratory in NAC
7/103. Sank did not recreate it, however, and in 1991, the
Department permitted Kinzey to set up a laboratory there.
On August 8, 1989, Sank again amended the complaint
to allege the retaliatory seizure and dismantling of her
laboratory in July 1989. She named Rodriguez as a person
with whom she discussed the dismantling and stated that
“[h]e refused to give me back my lab room, even though
there are alternative rooms to use for other departments.”
Correspondence between Sank and the Commission and
Rodriguez and Sank discuss his role in the decision to move
her lab. Rodriguez was not added to the caption. (In the Court
Complaint, Sank alleges he, along with three school officials,
were all responsible for the retaliatory actions and her failure
to be warned of the same.)
On March 3, 1990, she amended the Commission Complaint
to add Besmer, the new Department Chair, who Sank alleges
threatened to take her research computer for his own use. Sank
alleged in her Commission Complaint that Besmer's actions
were his way of thanking Harleston for appointing him as
acting Chair.
Throughout and after the period she was filing and amending
her Commission complaint, Sank sought information through
FOIL from CCNY and CUNY officials. The first letter
request was on June 9, 1988, and the last on January 2, 1992.

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Sank v. City University of New York, Not Reported in F.Supp.2d (2002)

On July 24, 1991, the Investigator at the Commission
indicated on a file memorandum regarding Sank's complaint
that there was probable cause and forwarded the complaint to
the Commission's Enforcement Bureau.
The Commission issued a written determination and order on
January 22, 1993, finding “no probable cause to believe that
respondents engaged in the unlawful discriminatory practices
charged ....” Sank unsuccessfully appealed the Commission's
decision to the EEOC, which, according to the Complaint,
rejected the appeal without explanation.
On October 19, 1993, the EEOC issued a determination
concurring with the conclusions of the Commission and
granting Sank the right to sue within 90 days.
Sank filed her complaint in this Court on January 18, 1994,
and an amended complaint (the “Complaint”) was filed on
May 27, 1994. By decision dated May 23, 1995, this Court
granted, in part, defendants' motion pursuant to Fed.R.Civ.P.
12(b)(1), dismissing (1) plaintiff's claims of discrimination
based on age, religion, and disability, (2) plaintiff's Title VII
claims against Sowande and the CUNY Board of Trustees,
and (3) all of plaintiff's claims under 42 U .S.C. § 1983. Sank
v. CUNY, No. 94 Civ. 0253, 1995 WL 314696 (S.D .N.Y. May
24, 1995). Plaintiff's motion for reconsideration of the May
23, 1995 decision was denied. Sank v. CUNY, No. 94 Civ.
0253, 1997 U.S. Dist. LEXIS 1468 (S.D.N.Y. Feb. 13, 1997).
*5 Subsequently, individual defendants moved to dismiss
the Title VII claims against them in light of the Second
Circuit's holding in Tomka v. Seiler Corp., 66 F.3d 1295 (2d
Cir.1995). This motion was granted on June 25, 1997. Sank
v. CUNY, 1997 WL 362150 (S.D.N.Y. June 26, 1997).

has no right to trial by jury or recovery of monetary damages
or back pay.
A discovery dispute arose in the fall, and on October 9, 2001,
this Court ordered that, “Defendant shall permit plaintiff
and her son, Brian Firschein, to access and review the
personnel records of current and past employees of the City
College of the City University of New York during regular
business hours in the presence of a City College employee.
However, in accessing these personnel records, plaintiff may
only review, copy or record information pertaining to an
employee's hiring date, separation date, race, gender, and
current (or last known) address.” Order, October 9, 2001.
Following this Court's order, Sank's access to personnel
records was limited to four specific dates (two of which were
concurrent with classes Sank was teaching, as CCNY would
have knowledge of); for a duration of three hours or less;
and in a room that was used for other purposes and thus not
available during other regular hours. Moreover, pursuant to
the Order, Sank could only review records in the presence of
a City College administrative employee. That employee was
often unavailable, further limiting Sank's access to personnel
records.
In addition to these limitations, defendants did not produce
all the documents that they were ordered to produce. Some
of the personnel records lacked any specification of race or
gender-both of which are integral to Sank's contentions in this
case. In at least one instance, data relating to several different
employees was commingled in a single folder-despite the fact
that the defendants are very unlikely to have kept the records
that way in the ordinary course of business. Sank requested
more of the materials from a school official, who has yet to
comply with most of those requests.

Accordingly, the only claims remaining in this action are (1)
Title VII claims against CUNY and CCNY for gender and
race discrimination and retaliation; (2) a state FOIL claim
against defendant Sowande; and (3) a state contract law claim
against CUNY and CCNY.

On November 26, 2001, plaintiff filed a declaration in
support of a motion under Rule 56(f) to deny or postpone
summary judgment. The motion was deemed fully submitted
on February 27, 2002.

Defendants filed the instant motion on April 13, 2001. They
allege that plaintiff has failed to present evidence from which
a trier of fact could infer a violation of her rights under Title
VII and that this Court lacks subject matter jurisdiction over
plaintiff's state law claims. Finally, should plaintiff's claim
survive summary judgment, the Defendants claim plaintiff

Standard of Review
Rule 56(e) of the Federal Rules of Civil Procedure provides
that a court shall grant a motion for summary judgment
“if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits ... show
that there is no genuine issue as to material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S.

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4

Sank v. City University of New York, Not Reported in F.Supp.2d (2002)

317 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d
Cir.1991). “The party seeking summary judgment bears the
burden of establishing that no genuine issue of material fact
exists and that the undisputed facts establish her right to
judgment as a matter of law.” Rodriguez v. City of New York,
72 F.3d 1051, 1060-61 (2d Cir.1995). In determining whether
a genuine issue of material fact exists, a court must resolve
all ambiguities and draw all reasonable inferences against the
moving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281
F.3d 12, 18 (2d Cir.2002).

Discussion
I. Sank's Motion Under Rule 56(f).
*6 In addressing the present motion, the Court is mindful
that the plaintiff is proceeding pro se and that her submissions
should be held “ ‘to less stringent standards than formal
pleadings drafted by lawyers....” ’ Hughes v. Rowe, 449 U.S.
5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines
v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972));
see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d
Cir.1993). The Court recognizes that it must make reasonable
allowances so that a pro se plaintiff does not forfeit rights by
virtue of lack of legal training. Traguth v. Zuck, 710 F.2d 90,
94 (2d Cir.1983).
Indeed, district courts should “read the pleadings of a pro
se plaintiff liberally and interpret them to raise the strongest
arguments they suggest.” ' McPherson v. Coombe, 174 F.3d
276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir.1994). Nevertheless, the Court is also
aware that pro se statute “ ‘does not exempt a party from
compliance with relevant rules of procedural and substantive
law.” Traguth, 710 F.2d at 95 (quotations omitted).
Sank has filed a declaration under Fed.R.Civ.P. 56(f) seeking
an order denying defendants' motion for summary judgment
and compelling defendants to provide certain discovery. That
rule states that:
Should it appear from the affidavits of
a party opposing the motion that the
party cannot for reasons stated present
by affidavit facts essential to justify the
party's opposition, the court may refuse
the application for judgment or may order
a continuance to permit affidavits to be
obtained or depositions to be taken or

discovery to be had or may make such
other order as is just.”

Courts have interpreted Rule 56(f) to provide that when a
party facing an adversary's motion for summary judgment
reasonably advises the court that it needs discovery to be
able to present facts needed to defend the motion, the court
should defer decision of the motion until the party has had
the opportunity to take discovery and rebut the motion.
Commercial Cleaning Servs, L.L.C. v. Colin Serv. Systems,
Inc., 271 F.2d 374, 386 (2d Cir.2001) (citing Meloff v..
New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995)
(holding that grant of judgment was premature where plaintiff
submitted properly supported Rule 56(f) request for further
discovery in opposition to defendant's motion for summary
judgment); Hellstrom v. U.S. Dep't of Veteran's Affairs, 201
F.3d 94, 97 (2d Cir.2000) (“Only in the rarest cases may
summary judgment be granted against a plaintiff who has not
been afforded the opportunity to conduct discovery.”)). The
district court is afforded discretion in making this decision. Id.
The Second Circuit has established a four-part test to
determine the sufficiency of an affidavit or declaration
submitted pursuant to Rule 56(f). The affidavit or declaration
must detail: (1) the nature of the uncompleted discovery;
(2) how the facts sought are reasonably expected to create a
genuine issue of material fact; (3) what efforts the affiant as
made to obtain those facts; and (4) why those efforts were
unsuccessful. Paddington Partners v. Bouchard, 34 F.3d
1132, 1138 (2d Cir.1994); Hudson River Sloop Clearwater,
Inc. v. Dep't of the Navy, 891 F.2d 414, 422 (2d Cir.1989).
*7 Sank alleges that defendants have obstructed her ability
to access personnel records for several hundred employees
of CUNY for whom she seeks information regarding their
hiring dates, race, gender, and current addresses. She also
alleges that defendants interfered with her ability to depose
Harleston. Defendants claim that they have provided Sank
with the material she requested and that she is bound by the
discovery requests of her former attorney.

A. Actions of Sank's Former Attorney
Defendants argue that Sank should be bound by the discovery
requests by her former attorney.
It is true that clients are bound by the acts or omissions of
their attorneys. Pioneer Investment Serv. Co. v. Brunswick,

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5

Sank v. City University of New York, Not Reported in F.Supp.2d (2002)

507 U.S. 380, 397 (1993) (citing Link v. Wabash R. Co.,
370 U.S. 626, 633 (1962)) (finding that clients are bound
by their attorney's omission in not filing a claim under
bankruptcy law); United States v. Cirami, 535 F.2d 736, 741
(2d Cir.1976) (affirming summary judgment against client
despite claims of attorney misconduct); Trehern v. OMI
Corp., No. 98 Civ. 0242, 1999 U.S. Dist. LEXIS 919, at
*9 (S.D.N.Y. Feb. 1, 1999) (denying plaintiff's motion for
change of venue where he claimed that he did not know that
his former attorney had filed suit in New York).

*8 Defendants claimed in a memorandum dated December
21, 2001, that Sank should have had access to the materials
as of January 11, 2002. Sank's sur-reply to this memorandum
is dated February 25, 2002. In it, she states that “Defendants
have yet to make available to me the actual personnel files for
any of the individuals I have been able to identify ....” Pl.'s
Sur-Reply at 5. She also lists other documents that defendants
have still failed to produce.

As discussed below, Sank seeks only discovery that she

for summary judgment on Sank's Title VII claims. 7 She
disputes the fact that the decision to remove her from her
chairpersonship was not based on any illegitimate factors.
The records she seeks could aid her argument in that regard.
For instance, Sank claims that no one else in the history of
CCNY had ever been removed as Chair (rather than asked to
resign). These records could support or rebut that contention.
In addition, she claims that CCNY impermissibly promoted
persons on the basis of race and sex; she can only support
her contentions by determining the races and sexes of persons
who received appointments.

5

herself has already requested and that this Court has already
ordered. 6 The actions of her former attorney, and the extent
to which they bind her, are not at issue. What is at issue
is whether the defendants have complied with this Court's
October 9, 2001 order so that Sank could fairly respond to
their motion for summary judgment.

B. Deposing Harleston
Sank complained in her cross motion of defendants'
obstructions to her deposition of Harleston. Because Sank has
taken that deposition, this issue is moot.

C. Personnel Records
It does not appear as though Sank has had a reasonable
opportunity to obtain access to personnel records that she had
requested and that this Court ordered made available to her.
On October 9, 2001, this Court ordered that the defendants
allow Sank and her son access to personnel records. The
defendants allowed Sank the ordered access, but for such
constricted periods of time that she did not have sufficient
time to complete her discovery. In effect, Sank had two
three-hour periods, on different days, when she could sift
through records. In addition, some of the personnel records
lacked any specification of race or gender-both of which
are integral to Sank's contentions in this case. In at least
one instance, data relating to several different employees
was commingled in a single folder-despite the fact that the
defendants are very unlikely to have kept the records that way
in the ordinary course of business. Sank has requested more
of the materials that defendants were ordered to produce from
a school official, who has yet to comply with most of those
requests.

Access to these personnel materials would be integral
to Sank's preparing a defense to the defendants' motion

Therefore, summary judgment on the matter of Sank's Title
VII claims will be dismissed. A pre-trial conference will be
held to address the specifics of Sank's remaining request and
clarify what records are available and what records Sank
seeks.
However, defendants' arguments regarding the Eleventh
Amendment and FOIL do not rely on these disputed issues
of material fact. Therefore, the Court will address the other
contentions.

II. The Eleventh Amendment Bars Sank's Breach of
Contract Claim.
The Eleventh Amendment limits the ability of federal courts
to entertain suits brought against the states, regardless of the
relief sought, unless the state consents to be sued, or Congress
enacts legislation overriding the state's Eleventh Amendment
immunity. Papasan v. Allain, 478 U.S. 265, 276 (1986);
Pennhurst State School and Hospital v. Halderman, 465 U.S.
89,99 (1984).
It has been established that CUNY's senior colleges are
arms of the State entitled to Eleventh Amendment immunity.
Hester-Bey v. New York City Technical College, No. 98
Civ. 5129, 2000 U.S. Dist. LEXIS 5323, at *11 (E.D.N.Y.

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Sank v. City University of New York, Not Reported in F.Supp.2d (2002)

March 24, 2000) (holding that because senior colleges are
“funded and administered by the State to a great degree,”
they constitute an arm of the State and are immune from
suit under the Eleventh Amendment); see also Becker v.
CUNY, 94 F.Supp.2d 487, 490 (S.D.N.Y.2000) (holding that
CUNY's central administration, like CUNY's senior colleges,
possesses Eleventh Amendment immunity as an arm of the
State). Thus defendants CUNY and CCNY are entitled to
Eleventh Amendment immunity.
This does not end our inquiry, however. The State may
nonetheless consent to suit in the federal courts. If it does not,
however, this Court cannot hear Sank's claims. A number of
courts have held that the State has not consented to suit for
breach of contract claims and thus held that federal courts
lacked jurisdiction to hear breach of contract claims against
state entities, including CUNY. E.g., Burrell v. CUNY, 995
F.Supp. 398, 415 (S.D.N.Y.1998); Jungels v. SUNY, 922
F.Supp. 779, 787 (W.D.N.Y.1996).
*9 The Burrell court also made the instructive point that,
even if the Eleventh Amendment did not exist, this court
could not entertain jurisdiction of a breach of contract claim
against one of New York's “senior colleges.” The New York
Court of Claims has exclusive jurisdiction over such claims.
N.Y. Educ. Law § 6224(9); see also Illickal v. Roman, 236
A.D.2d 247, 248, 653 N.Y.S.2d 562, 563 (1st Dep't 1997)
(dismissing breach of contract claim against medical school).

clear. FOIL does not give rise to a private cause of action
to recover money damages. Warburton v. State, 173 Misc.2d
879, 881-82, 662 N.Y.S.2d 706, 708 (N.Y.Ct.Cl.1997). In the
event that access to a record is denied, the affected person may
bring a C.P.L.R. Article 78 proceeding, and may be awarded
reasonable attorney's fees and litigation costs. Id. Criminal
sanctions may also ensue. Id. “Here, the Legislature has given
a civil remedy by way of an article 78 proceeding with counsel
fees and court costs available, as well as a criminal sanction.
To go beyond those remedies and create a private cause of
action for money damages for a violation of FOIL would be
an improper usurpation of the legislative function, a step the
Court declines to take.” Id.
It is unclear what remedy Sank seeks from Sowande. She
may only seek injunctive relief pursuant to FOIL, and the
Eleventh Amendment limits the injunctive relief she can
obtain to prospective relief. Thus, to the extent that Sank seeks
something other than prospective injunctive relief against
Sowande, this claim is dismissed.

IV. Trial by Jury and Money Damages
Prior to the enactment of the Civil Rights Act of 1991 (“1991
Act”), plaintiffs bringing claims of discrimination under Title
VII were limited to equitable relief-typically reinstatement
and back pay-and were not entitled to a jury trial. Patterson
v. McLean Credit Union, 491 U.S. 164, 182, n. 4 (1989); see
also 105 Stat. 1071-80 (1991).

The breach of contract claim therefore is dismissed.

III. The FOIL Claim Is Dismissed in Part
Sank's claim against Sowande does not face the same
Eleventh Amendment bar discussed above. However, FOIL
claims are limited to seeking injunctive, rather than monetary
relief, through a specified procedure in the state courts.
The Eleventh Amendment does not bar State law claims
against State officials in their individual capacities that seek
money damages or prospective injunctive relief. Huang v.
Johnson, 251 F.3d 65, 70 (2d Cir.2001); Dwyer v. Regan,
777 F.2d 825, 835 (2d Cir.1985). Sank sued Sowande
“individually and in her official capacity ....” Amended
Compl. at 2. Therefore, the Eleventh Amendment presents no
bar to Sank's claim against Sowande in her individual capacity
for money damages or for prospective injunctive relief.
As with the breach of contract claim above, however, the
Eleventh Amendment is not the only hurdle Sank has to

*10 In Landgraf v. USI Film Prods., 511 U.S. 244
(1994), the Supreme Court addressed the issue of whether
those provisions of the 1991 Act authorizing recovery of
compensatory and punitive damages, as well as trial by jury,
for Title VII claims applied to cases pending when it became
law. Landsgraf, 511 U.S. at 249-50. The Court held that
the provisions were not retroactive. Id. at 286. Accordingly,
Title VII plaintiffs cannot recover compensatory or punitive
damages for events arising before November 21, 1991, the
effective date of the 1991 Act. Id. at 283, 286; Joseph v. New
York City Bd. of Educ., 171 F.3d 87, 91 (2d Cir.1999).
The latest conduct that Sank complained of occurred in 1990.
Plaintiff therefore is not entitled to a trial by jury or an award
of compensatory or punitive damages for her Title VII claim.
Moreover, with respect to Sank's claims for injunctive relief,
it is undisputed that she suffered no loss of wages or other
pay as result of her removal as department chairperson. She
is therefore not entitled to an award of back or future pay.

© 2014 Thomson Reuters. No claim to original U.S. Government Works.

7

Sank v. City University of New York, Not Reported in F.Supp.2d (2002)

Conclusion
For the foregoing reasons, the plaintiff's Rule 56(f) motion
is granted in part and denied in part; the defendants' motion
for summary judgment is granted in part and denied in
part; and the defendants' Rule 39(a) motion is granted. A

pre-trial conference is ordered for April 10, 2002, at noon,
in Courtroom 18-C, to discuss Sank's remaining discovery
requests.
It is so ordered.

Footnotes

1
2
3
4
5

6

7

A September 15, 1988 letter from Sank to the CCNY Dean of Faculty and Staff Relations makes reference to her enclosure of a
report on The Status of Women and Faculty Appointment at CUNY.
There was a lack of an appropriate quorum however. The lack of quorum was successfully challenged through the University
grievance process. In September Besmer was properly appointed.
As part of the project, the college was forced to vacate between 400,000 and 500,000 square feet, or approximately 20 to 25 % of
the total campus space of two million square feet.
Rodriguez made the ultimate decision on space allocation. However, he would routinely report his recommendations to the Space
Advisory Committee, comprised of deans, faculty members, and administrative employees. The role of the committee was to provide
Rodriguez with feedback and to keep the CCNY community informed of the renovation progress.
As early as September 1997, while prosecuting the action pro se, Sank requested “the race and gender of certain administrators and
faculty personnel at City College, their qualifications (e.g. as indicated by their curriculum vitaes), as well as their titles and faculty
ranks, status (permanent or acting), dates of appointment, promotion, permitted leave(s), and (if applicable) resignation/termination
from their positions (as well as the reasons therefor, if known), and any changes therein, as well as the names of the officials who
made each such appointment, promotion, etc.” Sank letter, October 22, 2001.
On October 9, 2001, This Court ordered that “Defendant shall permit plaintiff and her son, Brian Firschein, to access and review
the personnel records of current and past employees of the City College of the City University of New York during regular business
hours in the presence of a City College employee. However, in accessing these personnel records, plaintiff may only review, copy
or record information pertaining to an employee's hiring date, separation date, race, gender, and current (or last known) address.”
Order, October 9, 2001.
Defendants argue that Sank, a pro se plaintiff, did not “state with clarity” what additional facts she sought or why they would raise a
genuine issue of material fact. Defs.' Mem. at 3. However, reading her submission liberally and interpreting it to raise the strongest
arguments it suggests, the Court finds that Sank did address these aspects. McPherson, 174 F.3d at 280.

End of Document

© 2014 Thomson Reuters. No claim to original U.S. Government Works.

© 2014 Thomson Reuters. No claim to original U.S. Government Works.

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