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Skoorka v. Kean University

United States District Court, D. New Jersey

June 26, 2018

BRUCE M. SKOORKA, Plaintiff,
v.
KEAN UNIVERSITY et al. Defendants.

          OPINION

          KEVIN McNULTY UNITED STATES DISTRICT JUDGE

         Dr. Bruce M. Skoorka is a tenured professor of Economics and Finance at Kean University. He has frequently complained of discrimination and wrongful conduct by Kean University and persons affiliated with Kean. In this current action, Dr. Skoorka alleges that Kean University, his union, and persons affiliated with these entities have retaliated against him for whistleblowing and because of his religion. Now before the Court are defendants' motions to dismiss the complaint.

         Because the allegations both repeat and supplement those made in prior actions and earlier in this action, this opinion should be read in conjunction with the Court's comprehensive opinion largely granting a prior motion for summary judgment. See Skoorka v. Kean Univ., No. 9-cv-3428, 2017 WL 2838459 (D.N.J. June 30, 2017).

         I.PROCEDURAL HISTORY [1]

         Dr. Bruce Skoorka, a professor at Kean University, alleges that he has been subject to retaliation for whistleblowing and because of his religion. (Compl. ¶ 2). Dr. Skoorka identifies himself as a member of the Jewish faith. (Compl. ¶ 25). Dr. Skoorka sues Kean University, the State of New Jersey, the Board of Trustees of Kean University, Kean Federation of Teachers ("KPT"), American Federation of Teachers ("AFT"), and the Council of New Jersey State College Locals ("Council"). (Compl. ¶¶ 3-10). He also sues several individuals associated with Kean: Dawood Farahi (the President of Kean), Jeffrey Toney (Provost and Vice President for Academic Affairs), Suzanne Bousquet (Dean), Joy Moskovitz (Assistant Vice President for Academic Affairs), Kenneth Green (Counsel), Pamela Mosley Gresham (Ethics Liaison Officer), Sophia Howlett (Acting Dean and Director Associate Vice President for Learning Support), Faroque Chowdhury (Human Resources Director), and Charlie Williams (Title IX Coordinator, Director of Affirmative Action Programs). (Compl. ¶¶ 11-13).

         A. Prior Complaints and Lawsuits

         Dr. Skoorka began working for Kean in 1996. Skoorka v. Kean Univ., No. 9-3428, 2015 WL 3533878, at *1 (D.N.J. June 2, 2015). He was awarded tenure effective as of the 2001-02 academic year. Id. Over the course of his employment, he has lodged a number of complaints, some of which are surveyed here.

         i. Early internal complaints

         Sometime before 1998, Dr. Skoorka complained internally that the then-chairperson of his department, Dr. Kempey, had discriminated against an African American colleague on the basis of race. Id. He later reported that the University discriminated against him as a Jewish person. Id. He also made internal allegations that defendant Kempey was misappropriating funds from the Economics Department for personal use. Id. These embezzlement allegations were based solely on his observation that the department lacked office supplies, copiers, printers, or secretarial support. Id.

         ii. 2001 state court action

         In November 2001, Dr. Skoorka brought a state court action against Kean, his union, and several individual defendants. Id. at *2. He alleged retaliation and discrimination on the basis of religion. Id. He pursued claims under the First Amendment, Equal Protection Clause, the Conscientious Employee Protection Act ("CEPA"), the New Jersey Law Against Discrimination ("NJLAD"), Title VII of the Civil Rights Act ("Title VII"), and Section 1983. Id.

         The suit took some ten years, two jury trials, and at least two written opinions from the Appellate Division to fully resolve itself-although the Appellate Division observed that Dr. Skoorka's case was "always weak." Id. In the end, Dr. Skoorka was unsuccessful on all counts. Id. The Appellate Division affirmed the trial court's rulings, as well as the jury's verdict, in August 2011. Id.

         iii. 2006 EEOC complaint and federal court action

         While his state court suit was pending, Dr. Skoorka filed a charge of discrimination with the EEOC on July 24, 2006. Id. On April 6, 2007, Dr. Skoorka brought an action in this federal court. Id. On March 20, 2009, the parties entered into a consent order wherein the judge dismissed Dr. Skoorka's case and granted him leave to refile his complaint within 120 days. Id. The order stipulated that if Dr. Skoorka refiled his complaint, the date of filing would relate back to April 6, 2007-i.e., the date he filed his federal lawsuit. Id.

         iv. 2009 DNJ and 2014 SDNY action

         Near the end of that 120-day period, Dr. Skoorka refiled his complaint. Id. at *3. (I will call this the "2009 Action".) The 2009 Action attempted to relitigate some of the matters on which Skoorka failed to prevail in the state court action. The 2009 complaint also incorporated the 2007 complaint's allegations, with the addition of a few incidents that had allegedly occurred in the interim. Id.

         On June 27, 2014, Dr. Skoorka filed a complaint in the Southern District of New York (the "2014 Action"). Id. It virtually duplicated the allegations in the 2009 Action. (Skoorka later claimed that many of its allegations were fresh, or updated, and I afforded him the opportunity to replead.) Skoorka frankly acknowledged that he was forum-shopping because "to date, it has not been possible for Plaintiff to obtain a fair hearing of his claims against Defendants in New Jersey." (2014 Action ECF no. 11 at 21). The 2014 Action was transferred to this Court and consolidated with the 2009 Action. Id. (14-4561, ECF Nos. 39, 40). In essence, it was treated in this district as an update of the earlier allegations.

         In a June 2, 2015 opinion, this Court granted summary judgment for defendants on the CEPA, NJLAD claims, and Title VII discrimination claims. Skoorka, 2015 WL 3533878, at *4. The union defendants were granted summary judgment in their favor. Id. I surveyed some 15 allegations, many of which had been updated since the filing of the 2009 complaint. Twelve, I found, were unsupported by any evidence. Three, I found, had at least minimal record support, and I discussed those three in light of the governing legal standards. The only claim to survive summary judgment was Dr. Skoorka's Title VII claim of retaliation as asserted against Kean. Id.

         B. This Action

         Around February 16, 2015, Dr. Skoorka filed charges of discrimination and retaliation against defendants with the New York District Office of the EEOC. (Compl. ¶ 14). He amended or supplemented the EEOC charges around March 6, 2015, September 30, 2015, and January 19, 2016. (Compl. ¶ 14). He received a right-to-sue letter in March 2016. (Compl. ¶ 15). He then filed a complaint in the Southern District of New York, which was transferred to this Court. (ECF Nos. 1-4). I will call this the "2016 Action." This opinion addresses defendants' motion to dismiss the transferred 2016 Action.[2]

         II. ALLEGATIONS OF THE COMPLAINT

         The complaint in this 2016 Action seems to raise or refer to allegations that have been discussed or dismissed in prior actions, and especially in my summary judgment opinion in the 2009 Action, Skoorka v. Kean Univ., No. 9-cv-3428, 2015 WL 3533878 (D.N.J. June 2, 2015). It also contains some new or updated allegations. I survey the allegations here.

         A. Disability Policy

         Dr. Skoorka claims that he was falsely accused of violating policies or practices regarding accommodations for students with disabilities. (Compl. ¶ 45). According to Dr. Skoorka, a student requested to use a tape recorder for notes but Dr. Skoorka recommended a note taker instead, apparently because his class uses visual aids. (Compl. ¶ 55). Dr. Skoorka filled out the "Student Disability Accommodation Form" for the student and wrote in "note taker." (Compl. ¶¶ 47-49). He alleges that "Kean suspiciously removed the note-taker option from the 'form' presented to Dr. Skoorka ... to set Dr. Skoorka up for a false accusation" of "denying a disability accommodation for a student and altering a form." (Compl. ¶¶ 47-49). Defendant Farahi sent Dr. Skoorka a letter about this matter around January 19, 2015 and placed the letter in Dr. Skoorka's personnel file. (Compl. ¶ 52). Dr. Farahi's letter stated that Dr. Skoorka's actions were "inappropriate" but did "not constitute a violation of the State Policy." (Compl. ¶ 53). The letter stated that "the information available revealed concerns about your professionalism, i.e., demeanor, collegial conduct, etc. in your interactions with students" and thus "this matter will be referred to the Office of Human Resources for appropriate action." (Compl. ¶ 53). No. further action is alleged.

         B. Office Hours and Administrative Policies

         Dr. Skoorka alleges that he was falsely accused of failing to comply with office-hours and other administrative policies. (Compl. ¶¶ 56-74). Kean stated that Dr. Skoorka failed "to update [his] office hours for the Fall 2014 semester" and requested a meeting to discuss that issue and "other administrative matters such as your general lack of responsiveness." (Compl. ¶ 59). Kean allegedly threatened Dr. Skoorka if he failed to attend such meeting. (Compl. ¶ 59). On October 23, 2014, Dr. Skoorka filed rebuttals stating that he had done nothing wrong. (Compl. ¶ 60). He claims that he has kept regular office hours; uses his personal email address because Kean failed to provide him with a working computer and appropriate access to Kean email; has provided his course syllabi to all students; does not submit a never-attended report because it is unnecessary and creates other problems; and does not check his voicemail because Kean has not provided him with a working phone. (Compl. ¶65).

         Dr. Skoorka admits that he did not submit a self-assessment review report that was required for his faculty review. (Compl. ¶ 65). According to Skoorka, "given the ongoing unlawful conduct against me and ongoing litigations, it would be impossible for me to receive an unbiased [faculty] review." (Compl. ¶ 65).

         Dr. Skoorka alleges that many non-Jewish faculty members used non-Kean email addresses, failed to post office hours, and failed to keep regular office hours. (Compl. ¶ 66-67). These faculty members were allegedly not subject to adverse actions. (Compl. ¶¶ 66-67). Skoorka claims that Dr. Kempey, who is not Jewish, was granted deferral of faculty evaluation because of Skoorka's litigation with Kean. (Compl. ¶ 72).

         C. Teaching Duties

         Dr. Skoorka claims that Kean stripped him of his teaching duties in January 2015. (Compl. ¶ 75). On or about December 26, 2014, Kean requested that Dr. Skoorka attend "professional development days" alongside his colleagues. (Compl. ¶ 77). Dr. Skoorka requested a waiver and received one; he did not attend the program. (Compl. ¶¶ 78-79). The day after the program, Kean reassigned Dr. Skoorka to "professional development and nonteaching assignment for the Spring 2015 semester" and requested a meeting. (Compl. ¶ 82). Kean relied on Skoorka's absence from the professional development program as the basis for removing him from teaching duties. (Compl. ¶ 86). Dr. Skoorka alleges that the program was "sparsely attended" and that "[n]o one" in his department attended. (Compl. ¶ 87). Dr. Skoorka claims that he was entitled to teach every semester and his union's collective bargaining agreement did not permit such nonteaching duty. (Compl. ¶ 88).

         Kean set up a meeting with Dr. Skoorka on January 21, 2015 to discuss the situation. (Compl. 89). Dr. Skoorka's union told Dr. Skoorka and Kean that a union representative was entitled to attend the meeting. (Compl. ¶ 92). Kean said "this is a work assignment" meeting, not an "employment meeting," and that therefore the union representative could not attend. (Compl. ¶ 92). Dr. Skoorka claims that the union should have filed a grievance. (Compl. ¶ 93). Kean also did not allow Dr. Skoorka to bring a court reporter to the meeting. (Compl. ¶ 92).

         At the meeting, defendant Bousquet and Kean stated that Dr. Skoorka did not post his course syllabi, did not use a Kean email address, and had not filed a faculty report. (Compl. ¶ 94). Dr. Skoorka claims these accusations were "frivolous" and "petty," and that his actions did not violate the collective bargaining agreement or the law. (Compl. ¶ 95).

         Dr. Skoorka remained on a nonteaching assignment for the Spring 2015 semester. (Compl. ¶ 98). He was required to work five days per week on campus from 9am to 5pm; he also had to sign in and out each day. (Compl. ¶ 98). Defendant Bousquet stated that Dr. Skoorka needed to revamp the "old" course outlines, that he would be required to give two guest lectures in other faculty's classes, and that the assignment was not given on a "punitive" basis. (Compl. ¶ 99). Dr. Skoorka maintains that other faculty members are not required to work more than four days a week on campus, and that these assignments conflicted with him teaching at NYU on Thursdays and observing the Sabbath on Fridays. (Compl. ¶ 102). He claims that his collective bargaining agreement requires one semester's advance notice to reassign a faculty member, which he did not receive. (Compl. ¶¶ 103-04). Additionally, Dr. Skoorka was required to submit timesheets while other faculty members were not; this, he says, was prohibited by the union collective bargaining agreement. (Compl. ¶ 105). Several months later, Kean raised the issue of timesheets on a faculty-wide basis. The union stated that this was prohibited for tenured faculty members. (Compl. ¶ 106).

         Dr. Skoorka alleges that he was very popular with students and had a significant number of registrations for his spring 2015 classes. (Compl. ¶¶ 115-16). Students told Dr. Skoorka that they filed a petition on his behalf when they learned he was not teaching that semester. (Compl. ¶ 119).

         D. NYU Teaching Position

         Dr. Skoorka had been teaching at NYU as an adjunct faculty member since around 1988/89. (Compl. ¶ 121). Kean's requirement that Dr. Skoorka work on campus from 9am to 5pm on Thursdays prevented him from maintaining his employment at NYU. (Compl. ¶ 122). (Previously, Skoorka claimed that he taught at NYU only at night. Skoorka, 2015 WL 3533878 at *17. The discrepancy is unexplained.) In February 2015, Kean accused Dr. Skoorka of non-compliance with state ethics requirements for failing to file a questionnaire regarding his teaching capacities as an NYU adjunct. (Compl. ¶ 148). Dr. Skoorka completed an online training on ethics in February 2015 and again in May 2015. (Compl. ¶¶ 157-60).

         According to Dr. Skoorka, Kean faculty members regularly hold outside employment. (Compl. ¶¶ 123, 151-54). He states that Dr. Kempey held outside employment with the "New Jersey Council on Economics Education" and was given "release time" (i.e., he was excused from teaching six credits of courses) because of that position. (Compl. ¶ 152).

         E. Keanwise System

         Around January 30, 2015, Kean removed Dr. Skoorka's class rosters and teaching schedules, including archives from previous semesters, from Keanwise-i.e., Kean's online system. (Compl. ¶ 146). Presumably this was in connection with his being relieved of teaching duties.

         F. Grievance Process and Assignments

         Kean did not process Dr. Skoorka's grievance regarding his nonteaching assignment. (Compl. ¶ 124). On January 21, 2015, Dr. Skoorka requested that the union intervene. (Compl. ¶ 125). Dr. Skoorka sent the union a detailed memorandum on January 25, 2015. (Compl. ¶ 126). On or about January 30, 2015, the union, at Dr. Skoorka's insistence, filed four grievances on his behalf. (Compl. ¶ 127). Under the collective bargaining agreement, Kean was required to address the grievances within twenty days-i.e., by February 19, 2015. (Compl. ¶ 127).

         Kean offered to hold a hearing on April 2, 2015. (Compl. ¶ 132). Dr. Skoorka wanted to return to the classroom during the spring semester and felt that this hearing date was too late; he objected to Kean's offer. (Compl. ¶¶ 133-34). Thursday, April 2, 2015, was also a date that Dr. Skoorka was scheduled to teach at ...


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