New York State Court of Claims

New York State Court of Claims
BOWEN v. CITY UNIVERSITY OF NEW YORK, # 2009-016-054, Claim No. 112665


Case information

UID: 2009-016-054
Claimant(s): BARBARA BOWEN as President of the Professional Staff Congress/CUNY, and AKBAR LOTFIPOUR
Claimant short name: BOWEN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112665
Motion number(s):
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Schwartz, Lichten & Bright, P.C.
by: Stuart Lichten, Esq.
Defendant's attorney: Andrew M. Cuomo, Attorney General
by: Ellen Mendelson, AAG
Third-party defendant's attorney:
Signature date: November 25, 2009
City: New York
Official citation:
Appellate results:
See also (multicaptioned case)


This is the decision following the trial of Akbar Lotfipour's claim against the City University of New York (CUNY), which arose from his employment at Hunter College, where Mr. Lotfipour had been the director of purchasing from 1998 to 2002.

About a year after claimant began work at Hunter, his immediate supervisor left and was replaced by William Fox. Claimant described his work relationship with Mr. Fox as "hostile." He added that Fox was "someone who never worked as a mentor to me, no encouragement. From the very first day . . . we never seemed to get along well."

In the spring of 2002, Fox sought to have Lotfipour terminated, but that effort was opposed by the claimant's collective bargaining representative, the Professional Staff Congress. The grievance was resolved with a four-page Settlement Agreement (cl exh 1). The Agreement provided that: 1) Lotfipour would resign effective May 10, 2002; 2) Lotfipour and the Professional Staff Congress agreed to withdraw all legal actions that had been begun on claimant's behalf; 3) the annual performance evaluations from 2000-2002 and the February 28, 2002 letter of "non-reappointment" would be removed from Lotfipour's file; and 4) all requests for references were to be made and responded to in writing.

The fourth item, relating to references, is the focus here, and the relevant provision of the Settlement Agreement provides as follows:

Reference requests made to Hunter College . . . concerning Mr. Lotfipour's employment shall be handled in the following manner: Mr. Lotfipour will instruct persons seeking a reference to address their requests, in writing, to the Director of Human Resources, Hunter College . . . Upon receipt of a written request for a reference the Director of Human Resources at Hunter College will issue a letter which shall state the following:

This letter is in response to your request for a reference concerning Mr. Akbar Lotfipour. Mr. Lotfipour was employed by Hunter College as the Director of Purchasing and Contracts from October 19, 1998, through May 10, 2002.(1) His last annual salary rate was $81,924.

This letter shall be the only response made by the Director of Human Resources to requests for information regarding Mr. Lotfipour's employment at Hunter College.

Telephone requests for references will not be honored by the Director of Human Resources. Persons making such requests will be advised by the Director of Human Resources that reference requests must be submitted in writing.

* * *

Four years later, in May of 2006, when Lotfipour was employed at the State University College of Optometry, he responded to an advertisement in the New York Times for a position as the director of purchasing for the Office of the New York County District Attorney. Claimant sent in his resume and a cover letter and was called in for an interview with Dayrell Taylor, the director of operations for the district attorney.

Lotfipour recalled that the interview with Mr. Taylor lasted about 90 minutes, and they discussed what claimant's role would be, who would be reporting to him, the overall staffing alignment and some of the "backlogged" contracts. Lotfipour indicated that he was told that the position would pay "about $83,000." Lotfipour concluded that he "felt that it was a very good, very positive, interview. And he - -actually, he showed me an area where they're renovating for . . . the purchasing officer's space to be located at."

Claimant sent Taylor a letter thanking him and within three weeks, he was called in, one of three finalists, for a second interview, this time with Katherine Cobb,(2) whose title claimant believed to be "administrative legal hiring manager." According to Lotfipour, he met with Ms. Cobb for an hour; salary was not discussed at this meeting.

A few days later, Lotfipour had a message on his home answering machine from Taylor, asking for references. His response, an e-mail dated June 1, 2006, reads, "As I mentioned during our meeting, the individual to whom I reported at Hunter College is no longer there. Mr. Robert McGarry,(3) Human Resources Director can assist you in verifying my employment. You may address your request in writing to: Mr. Robert McGarry." McGarry's address at Hunter is listed, but with no phone number, fax or e-mail. In the e-mail, claimant had another reference: "At MTA Metro-North, you may contact: Ms. Vanessa Primus [who is] Deputy Director, Operating Procurement," and for Ms. Primus, claimant listed her address, e-mail, phone and fax numbers. (cl exh 3).

Lotfipour testified that he then called Mr. McGarry to alert him "that someone's going to contact you to ask for my reference . . ." Claimant recalled that during this call, he referred to the language in the Settlement Agreement on how requests for references were to be handled.

Lotfipour testified that on June 5 or June 7, he called McGarry again. McGarry told him that he had received a phone call from the District Attorney's office, that he gave them the basic information over the phone, and because the caller insisted, gave out the name of William Fox, indicating that Fox was no longer at Hunter College, but still worked within the City University system. Claimant recalled saying something on the order of, " I thought we had already established . . . that you needed to go according to the settlement," and that McGarry then replied that he was sorry. Claimant never heard from the DA's office again, and he did not try to contact them.(4)

Claimant's testimony that McGarry mentioned Fox's name over the phone was not contradicted by the latter when he took the witness stand. McGarry testified that it was Katherine Cobb who had called him, and was "very insistent" about obtaining the name of Lotfipour's supervisor at Hunter.

However, McGarry testified that Lotfipour did not mention the Settlement Agreement with him when they spoke by phone, but said that he did tell claimant that "we only give out basic employment information . . . And I said, we verify dates of employment, title, salary, things of that nature. And so that was basically it . . . maybe what their organization structure was of the department."

* * *

A material aspect of the agreement comprehending Lotfipour's separation from Hunter was the manner in which requests for references would be handled, central to which was Lotfipour's uneasy history with William Fox, and as detailed above, defendant clearly engaged in a material contract breach. This was the agreement the parties entered into; each side is entitled to the benefit of the bargain. That it could have or should have been foreseen that a possible future employer would be insistent in getting more than the proverbial name, rank and serial number does not excuse performance.

The bigger hurdle for claimant is proving the causal link between the breach and his failure to receive the job offer. The aforementioned Mr. Taylor, the longtime operations director for the Manhattan DA, took the stand at trial, and stated that he had the responsibility in deciding whom to hire as purchasing director - - although Ms. Cobb's role was clearly significant, interviewing the finalists for the position, and telephoning McGarry to learn about claimant's supervisor.

Taylor denied that references played any part in the decision, but rather:

The reason that I didn't select Mr. Lotfipour was I was a little uncomfortable with . . . the number of positions he held. It seemed like he had bounced around . . . I felt that the candidate I selected was the best candidate for the position at the time.

Taylor was vague, perhaps evasive, on what was done about references:

Q. Did you ask him for his references?

A. I probably did.

Q. And that was after the second interview, after the interview with Ms. Cobb, is that correct?

A. I don't remember.

Q. Did you get any references from Mr. Lotfipour?

A. I would assume we did, yes. I don't - - it's such a long time, I really don't remember . .

Taylor said that he and Cobb compared notes on the candidates and discussed their work experience and how they fit into the unit. Then as to references:

Q. And during these conversations [with Ms. Cobb], were the references of any of the candidates discussed?

A. That wasn't our focus, no.

Q. It may not have been your focus, but was it mentioned?

A. I don't think we talked about references . . .

Q. You did request references from, Mr.Lotfipour, is that correct?

A. I assume we did . . . typically, that's . . . what we do . . .

Ultimately, Taylor, an employee of the New York County District Attorney, while likely interested in defending the process for which he was largely responsible, had no direct interest in claimant's difficulties with William Fox, the subsequent Settlement Agreement and how that agreement was implemented. While his testimony was hardly seamless, Taylor did not have an incentive to testify falsely.

Lotfipour's case on causation - - that the contract breach was the cause of his failure to receive the job offer - essentially turns on what claimant's former supervisor, William Fox, said about him. And on that critical issue, we have no probative information. No testimony from Taylor suggested that he spoke to Fox. Neither Fox nor Cobb was deposed or called to the stand at trial.

McGarry spoke to Fox. McGarry testified, without objection, that he called Fox, asked him if he had received a call from Cobb, who responded that she had called him. Then McGarry added, "I don't remember the exact words, but he did say he told her he could not speak with her about his employment and referred her to me."(5)

Finally, claimant conceded in his testimony that he was never told he had the job, or that he would get it if his references checked out. That Lotfipour was one of three finalists for the position does not mean that the job would have been offered to him had defendant stuck to its agreement on references. We do not know how the other two candidates stacked up when the hiring decision was made. For that matter, adhering to the agreement with what could be characterized as a neutral reference could have placed Lotfipour at a disadvantage against an applicant with an enthusiastic and detailed reference.

There is simply no evidentiary foundation to support the conclusion that had defendant adhered to the Settlement Agreement, claimant would have been offered the job he sought.

In view of the foregoing, claim no. 112665 is dismissed, and the Clerk of the Court is directed to enter judgment accordingly.

November 25, 2009

New York, New York

Alan C. Marin

Judge of the Court of Claims

1. This letter is for reference requests after May 10, 2002. There is a comparable form letter set forth in the same paragraph as the required response for requests on or before May 10, 2002.

2. The trial transcript has the spelling as "Kalb," but it is "Cobb" in both parties' post-trial briefs and in Robert McGarry's deposition (cl exh 6).

3. Claimant's e-mail spells the director's name as "McGary." When he testified, Mr. McGarry gave the spelling with two r's.

4. Lotfipour testified on cross-examination that he has since applied to the DA's office, but was not called in for an interview.

5. Claimant also put on the witness stand Debra Bergen, the director of contract administration and grievance counselor for the Professional Staff Congress. Ms. Bergen testified that she telephoned William Fox because claimant had reported to the union that Fox was spoken to in violation of the Settlement Agreement. According to Bergen, Fox said that he could not discuss the matter.