Prof'l Staff Congress/CUNY, Local 2334, AFTv.City Univ. of N.Y.

New York State Court of ClaimsNov 26, 2018
# 2018-049-111 (N.Y. Ct. Cl. Nov. 26, 2018)

# 2018-049-111 Claim No. 126671

11-26-2018

PROFESSIONAL STAFF CONGRESS/CUNY, LOCAL 2334, AFT, AFL-CIO, and BRUCE JONES v. THE CITY UNIVERSITY OF NEW YORK

Meyer, Suozzi, English & Klein, P.C. By: Megann McManus, Esq. Barbara D. Underwood, New York State Attorney General By: Renee C. Cote, Assistant Attorney General


Synopsis


Case information

Defendant(s):

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Cross-motion number(s):

Judge:

Signature date:

Official citation:

Appellate results:

See also (multicaptioned case)


UID:

2018-049-111

Claimant(s):

PROFESSIONAL STAFF CONGRESS/CUNY, LOCAL 2334, AFT, AFL-CIO, and BRUCE JONES

Claimant short name:

PROFESSIONAL STAFF CONGRESS

Footnote (claimant name) :

THE CITY UNIVERSITY OF NEW YORK

Footnote (defendant name) :

126671

Motion number(s):

DAVID A. WEINSTEIN

Claimant's attorney:

Meyer, Suozzi, English & Klein, P.C. By: Megann McManus, Esq.

Defendant's attorney:

Barbara D. Underwood, New York State Attorney General By: Renee C. Cote, Assistant Attorney General

Third-party defendant's attorney:

November 26, 2018

City:

Albany

Comments:


Decision

This action was initiated by claim filed September 1, 2015, by claimants Professional Staff Congress ("PSC"), a labor union representing employees at defendant City University of New York ("CUNY"), and former CUNY faculty member Bruce Jones. Claimants allege that Jones was employed by CUNY for 369 days, between August 28, 2013 and August 31, 2014 as Distinguished Lecturer in Entrepreneurship in the Department of Sociology at Queens College. According to claimants, as a participant in CUNY's Optional Retirement Program ("ORP") who had worked at least 366 days, he was entitled to an additional contribution by CUNY equal to 8% of his annual salary directed into a 403(b) retirement investment plan administered by TIAA-CREF. The premise of the claim is that CUNY improperly denied Jones that payment, which totaled $9,128.32.

PSC brings its claim in its capacity as the "bargaining representative of CUNY's faculty and professional staff" (Claim ¶ 2). It does not assert any independent damages from those claimed by Jones. I have previously found that a union may sue in such a representative capacity (see Professional Staff Congress v City Univ. Of New York, UID No. 2015-049-028 [Ct Cl, Weinstein, J., May 19, 2015]).

For its part, CUNY argues that Jones did not complete 366 days of employment, and thus was not eligible for the employer contribution.

After I denied cross motions for summary judgment (see Professional Staff Congress v City Univ. of New York, UID No. 2017-049-023 [Ct Cl, Weinstein, J., Aug. 18, 2017]), the case came before the Court for trial on April 11 and 25, 2018.

At the trial, Jones testified on his own behalf as follows: After some initial discussions in the Spring of 2013, he was offered the job of Distinguished Lecturer in Entrepreneurship at Queens College (Tr 23-25, Ex 1). The offer was set forth in a letter from Acting Dean of Social Sciences Dana Beth Weinberg dated May 20, 2013, which stated Jones' salary and indicated that his work would commence "beginning academic year 2013-2014 starting August 28, 2013" (Ex 1). Despite its title, the job carried no expectation of teaching in the first year (Tr 25).

Some of the documents in evidence refer to Jones as Director of the Entrepreneurship Center (see Ex 3).

Unless otherwise indicated, references to the trial transcript are indicated herein (Tr).

Jones testified that he began to perform work for the College, in helping build the entrepreneurship program, before the start date set forth in his appointment letter. He gave as examples of such work: drafting an email on the College's potential role in a proposal for a Long Island City Tech Incubator (id. at 31); preparing for and attending an economic development hearing on the same subject at the urging of Queens College administrators (id. at 32-33); and attending meetings, including one with the head of CUNY entrepreneurship programs John Clark in July and another with Congresswoman Grace Meng in August about obtaining federal funding for the program (id. at 38-39). Several email threads were entered into evidence relating to these events (Exs 2-8). In one instance Jones provided suggestions (Ex 2), and in another he set up a meeting (Ex 8). He acknowledged that he never sought compensation from the college for any tasks performed in the summer of 2013 (Tr 89-90).

Among retirement options, Jones chose the ORP, a defined contribution plan in which employee and employer make certain pre-tax contributions, but the employee is not guaranteed a specific annual payment upon retirement. He made this selection because the alternative fixed benefit plan would have required ten years of employment, and given that he had come to the job "late in life," he wanted a plan with a short vesting period (id. at 45). Pursuant to his participation in the ORP, Jones was required to make an annual contribution of 6% of his salary (id.).

Claimants introduced into evidence the form that Jones filled out to select the plan, and the relevant web pages on which he said he relied to get information about it. The website contained the following passages:

"Full-time employees must join a retirement program. . . . New employees . . . will receive accumulated university contributions to the Program once they have completed 366 days of service. (If you do not serve for at least 366 days, the university will not contribute to your account, and your own contributions will be refunded with interest).

. . .

For new members: During the initial 366-day service period described [above] both your contributions and those of the university will accumulate in interest-bearing accounts. At the end of this period, the university will transfer a single lump-sum contribution, with interest, to TIAA-CREF covering this period, followed by regular bi-weekly contributions. In addition, your own contributions will be transferred to TIAA-CREF. Note: if you do not complete 366 days of service, your initial contributions will be refunded to you with interest, but you will not receive the university's contributions.

. . .

Once you have completed 366 days of service with CUNY . . . you are fully vested in all retirement and death benefits provided by the investments purchased through both the university's and your own contributions" (Ex 10)

Although it is not clear that this was the precise language used on the date Jones reviewed the web page, defendant stipulated that the same terms existed regarding length of service, and that this exhibit adequately "stands for" the information given on the web site at the relevant time (Tr 48). Claimant's counsel indicated that the page was accessed via a web archive which would show what had been available during the relevant period (id. at 49).

Once the semester began, Jones engaged in research relating to the entrepreneurship program, including looking at comparable programs elsewhere in the United States, with the idea that he would develop a program that would get "buy in" from the faculty, board of advisors and others at Queens College (id. at 41-42). In general, Jones described the work as "project driven" (id. at 42). Because it took months to get a CUNY email account, Jones used his personal email address when he needed one for work purposes (id. at 42-43).

When his initial research was completed in December, Jones put together a Powerpoint presentation, and in January reviewed it with numerous individuals at the school, as well as the entrepreneurship program's Advisory Board and its founder Len Schutzman (id. at 49-51). In addition, he provided Acting Provost and Vice President for Academic Affairs Elizabeth Hendrey with monthly reports on his progress (id. at 49-50).

At the end of January, Jones learned that the location of the program had been moved from centrally located Alumni Hall to Queens Hall, which is more remote from the business students and the center of campus (id. at 52-53). He expressed his "vehement" opposition to the move, and spoke to Schutzman, board members and others in an attempt to reverse the decision, but to no avail (id. at 53-54). The move took place at the beginning of March (id. at 54).

Jones described his work during the post-January period as "talk[ing] to people" and "looking for support" for the program (id. at 55). On February 19, he was called into a meeting with Ms. Hendrey and Sociology Department Chair Andrew Beveridge, and was told he would not be reappointed the following year. Jones was upset by the announcement, and left the meeting (id. at 57, 77). He said that following his non-reappointment, and his protests against the program's move, he became "pretty much persona non grata on campus" (id. at 57).

On March 28, 2014 Jones received a letter from Ms. Hendrey officially informing him of his termination, and providing an end date for his employment, which is at the center of his claim. The letter stated:

"It is my duty to inform you that the Personnel and Budget Committee of the Department of Sociology has voted not to recommend your reappointment for the September 1, 2014 to August 31, 2015 academic year. This means that your employment at Queens College will terminate on August 31, 2014" (Ex 12).

In response, Jones testified that his feeling was: "I'm still an employee here at Queens College, and I'm going to continue to try and save this program one way or the other" (id. at 59). He also contacted PSC and commenced a grievance regarding his termination, but the grievance was denied (id. at 68-69, 78-79).

Defendant introduced into evidence a letter dated July 9, 2014, in which Queens College Interim President Evangelos Gizis explained the reasons for the decision "not to reappoint [Jones] as Distinguished Lecturer . . . for academic year 2014-2015" (Ex C). Among other things, the letter noted that the posting for the position had made clear that it was "subject to annual reappointment" (id.). Gizis stated that the dedication of resources to the Entrepreneurship Center was "not a priority," and therefore she rejected Jones' appeal from the decision "not to reappoint" him (id.).

Jones indicated that after the termination letter, his work consisted of "circling back with everybody" to try and find funds that would allow the entrepreneurship program to continue (Tr 59). He acknowledged that such work took up "all of [his] time" (id. at 60). He sought to meet with Ms. Hendrey to discuss these efforts, but she refused to see him (id.).

Jones stated that he continued such efforts through the last week of his employment, which began on Monday, August 25. He testified that he was "constantly calling people on campus to try and get a meeting," although some were not present during the summer recess (id. at 61). He also communicated with the human resources department about trying to switch his health benefits to COBRA (id. at 62-63). No one at the school reached out to him or met with him regarding his exit, or to address how he should turn over CUNY property in his possession (id. at 63). His final communication from the College was an August 29 e-mail - sent in response to an inquiry from Jones - indicating that his health insurance coverage would be expiring "at the end of the month" and providing him with other relevant insurance information (Ex. 14).

August 29 was a Friday, but Jones testified that if the school "wanted him to do, or attend to something" on the weekend, he would have done so (Tr 67). He noted that at this time he was still pursuing his grievance in an effort to be reinstated, and thus "there might be a hope that the position might be rejuvenated some way or another" (id. at 70). Jones indicated that it was his understanding at this time that he might need to prepare a course or undertake some other work with Queens College until the end of his employment - although he conceded that he did not actually work on getting classes ready to teach (id. at 71, 73). He performed no work in his office, but in coffee shops and the dining area, and through visits to individuals with whom he wished to speak (id. at 72-73). Jones conceded that he could have worked in his original office throughout the summer, but never did so, and no one directed him to go to a café to work (id. at 92).

As noted above, the CUNY president had rejected his challenge to his termination more than a month earlier. The record does not make clear what additional proceedings regarding his grievance remained outstanding at that point.

Following the end of his employment, Jones requested that CUNY provide him with the 8% "match" for his ORP contribution. That December, he was informed of CUNY's position that he did not qualify (id. at 68).

On cross-examination, Jones admitted that he could produce no emails from the summer of 2014 for employment-related activities, explaining that any work was done via his Blackberry, which was stolen in 2016 (id. at 81).

For its part, defendant presented the testimony of four witnesses. First, it called Jerry Rothman, the university executive director of instructional staff labor relations at the CUNY Office of Labor Relations. He testified regarding provisions of the collective bargaining agreement (the "CBA") between PSC and CUNY in effect during the events at issue.

That agreement, which was introduced into evidence as Exhibit D, covered the period 2002 through 2007 (Tr 108). The CBA covering 2007 through 2010 was signed in the summer of 2014 (id. at 110). Rothman testified that under the Taylor Law, all terms and conditions of the prior CBA remained in effect until a new one is negotiated (id. at 110-111).

Rothman pointed to two provisions of the CBA he said were relevant to the matter before the Court: sections 15.1(a) and 14.1.

Section 15.1(a) provides:

"The academic work year shall be from September 1 through August 31, inclusive of annual leave as currently provided in Article 14. Except for such periods of annual leave, classroom teaching members of the instructional staff shall be available for assignment to professional activities"

Section 14.1 provides:

"Effective August 25, 2006, the period of annual leave for full-time teaching members of the faculty shall be from the day subsequent to the spring commencement of each college until the third day, excluding Saturday and Sunday, preceding the thirtieth of August that follows such commencement or an equivalent consecutive period."

Reading these provisions together, Rothman calculated that since the last business day of 2014 occurred on Friday August 29, 2014, and under section 14.1 the period of annual leave ended three days prior to that date, "the last day of leave for that academic year" was August 26 (Tr 114). Rothman also testified that an individual professor cannot change the terms or the CBA or create his own contract (id. at 115).

When asked whether the above provisions can be read to state that while annual leave ends on August 26 (per section 14.1), the academic year continues after that date through August 31 (per section 15.1), Rothman testified that his understanding is that an employee's appointment "always ends on the last day of the annual leave period" (id. at 118). He acknowledged though that the agreement "doesn't say explicitly that" but the way "the calendars have always been constructed" is that annual leave comes at the end of the work year, and when it ends so too does that year (id. at 119-121). He also agreed that while there is an article in the CBA on retirement, nothing therein "relates to how an employee in Mr. Jones' position would qualify for benefits under the Optional Retirement Plan" (id. at 127). The only language in that article (Article 27) arguably relevant to this case states: "Determination of pension eligibility and benefits are made by the appropriate retirement plan" (Ex D, § 27.1).

I subsequently raised the question as to whether I could resolve any ambiguity in the CBA, or whether such disputes must be resolved through the arbitration procedures provided for in the Agreement itself. CUNY took the position that my role was limited to assessing the credibility of its witnesses' testimony on this issue (Tr April 17, 2018 at 7). For their part, claimants argued that the text of the CBA is silent on the question of employer contributions to the ORP, and therefore Article 14 and 15 do not apply to the matter at hand (id. at 10). Both agreed, in short, that I need not construe any ambiguity in the CBA in order to rule on this case.

CUNY also presented the testimony of Hendrey, Queens College's provost and vice president for academic affairs. From the summer of 2013 through the summer of 2015 - a period covering Mr. Jones' employment at the College - she served as acting provost (id. at 142). The provost oversees the Division of Academic Affairs, which governs hiring, reappointment, promotion and tenure for all full and part-time faculty and other instructional staff (id. at 146). Hendrey testified that if any professor was to receive a new, paying assignment, it had to be approved by her (id. at 148).

In regard to Jones, Hendrey testified that he was hired for two purposes: to develop a curriculum in entrepreneurship, and to fundraise and make connections with alumni and the business world (id. at 149-150). She said he was hired for the 2013-14 academic year, which lasted from August 27, 2013 to August 26, 2014, which she based on the fact that these were the "dates of pay" that are put on employee paperwork (id. at 150).

Under her understanding of the collective bargaining arrangement, professors' annual work is performed during the fall and spring academic terms, and they then earn annual leave for the summer that follows, during which time they are not required to come to campus, and any work they perform is voluntary and does not warrant extra compensation unless they have received formal approval to do such work on a part-time basis (id. at 151, 168). The last day of annual leave is the end of the academic year, and the following day the new academic year starts (id. at 161).

In regard to Jones, Hendrey called into question some of his assertions regarding tasks he performed prior to the start of the 2013-14 academic year. She did not think that she asked him to participate in the economic development meeting referenced in his testimony, and while she acknowledged that she asked if he wanted to attend a meeting with Congresswoman Meng, she denied having mandated him to go (id. at 153). Indeed, she said she could not have done so because he had not started work for CUNY at that point (id.). Hendrey said that she considered such summer work to be voluntary in any case, and it is "common practice" for professors to do some work to get ready for the semester before it begins (id. at 154-155).

As to Jones' subsequent termination, Hendrey's chronology was the same as claimant's: she informed him that he was not being reappointed at a meeting in February, and stated this in a follow-up letter in March (id. at 155). She testified that the listing of August 31 as his termination date in that letter was simply a mistake (id. at 156). She caught the error after the letter went out, but stated that she was not concerned because he would not perform any actual work after commencement in any case, and so the end date would "have just affected the last day of pay" (id. at 156-157). Indeed, after the February meeting, she never heard from him again, and was aware of no work that he performed after that point (id. at 157, 160). In March, Hendrey also received a request for additional assignments from Jones' personal assistant, who said that Jones was not giving him work (id. at 158). She acknowledged, though, that she would not be the one to give assignments to Jones or his personal assistant, as that task fell within the bailiwick of Jones' department chair (id. at 163).

CUNY also presented the testimony of Yan Juras, who is the "head server guy" at Queens College (id. at 172). He testified that he performed a search on claimant's CUNY email account, and found that no emails had been sent from it after May 19, 2014 (Tr 175).

CUNY called as its final witness Andrea Yenco, who was hired by CUNY in November 2015 as a university retirement plan asset officer. She described the CUNY faculty pension plan as follows: Within 30 days of appointment, a full-time faculty member must select a pension option. In the event the employee selects a 401(a) plan (i.e., the ORP), that individual must engage in 366 days of employment to qualify for the employer contribution (id. at197). The days of qualifying employment begin when the employee starts work, at which point his start date is entered into the payroll system (id. at 197-198). According to Yenco, work in a single academic year is insufficient to meet the eligibility requirement for employer contribution, and only an individual who is reappointed can qualify (id. at 198).

Yenco said that this information is conveyed to all employees by a benefits representative at their orientation, at which the 366-day requirement is covered (id. at 199). Yenco also noted that this requirement is set forth in the Education Law, and thus is strictly enforced (id. at 202). Specifically, Yenco said Education Law § 392(4) restricts employer pension contributions until an employee's "completion of one year of service and continuance in service thereafter," which is read by CUNY to require a reappointment, and the New York State Comptroller has programmed its system accordingly (id. at 205-206). Although Yenco did not commence her employment until after Mr. Jones term was ended, she testified that she knew these provisions had been in effect then, as she was trained by the executive director who had been in her position at that time (id. at 203-204).

Yenco stated that the academic year 2013-2014 lasted from August 27, 2013 through August 26, 2014, which dates were communicated to her in a memo from human resources (id. at 200-201). She also reviewed Mr. Jones' payroll records, which indicated that he was paid for 365 days of work, and his appointment was not renewed (id. at 201). He was, therefore, not eligible for the pension plan (id. at 202).

No such memo was introduced into evidence.

On cross-examination, Yenco acknowledged that neither the statute nor the CUNY website refer to reappointment as a requisite for employer pension contribution eligibility, but rather both speak of 366 days of service (id. at 208).

Defendant also introduced into evidence a certified record of Mr. Jones' earnings, which indicates his initial pay period began August 27, 2013, and ended August 26, 2014 (Ex B).

Discussion

Education Law § 392 (4) provides that "no contributions . . . shall be made by the state or by the electing employer until . . . completion [by an employee in the ORP] of one year of service and continuance in service thereafter." The requirement that Jones perform one year of service before he was eligible for such contribution was also set forth in his hiring letter, and in the background materials on the ORP presented on the CUNY website.

The statute does not define the term "service."

The parties do not dispute this requirement, but only whether Jones completed the requisite 366 days (i.e., one year in service and "continuance in service thereafter") needed to render him eligible (see Cl Post-Tr Br 5; Def Post-Tr Br 20).

Claimants do not point to a specific cause of action on which their legal arguments are premised. None is pled in the claim itself. In their summary judgment motion, they characterized the suit as one for breach of contract, while in their post-trial brief, it appears the claim is for violation of section 392. In either case, the gravamen of the claim is the same: that Jones completed 366 days of service, and therefore is entitled to the employer donation. I consider the claim below on both the statutory and breach of contract grounds.

Claimants have the burden to prove by a preponderance of the credible evidence that Jones met the eligibility requirement (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]). They cite three bases on which they claim to carry that burden: First, claimants assert that he worked for CUNY prior to the date on his hiring letter (id. [claiming Jones worked for CUNY on June 25, August 12, August 14, "and at least one more day between July 25 and August 28, 2013"]). Second, claimants contend that Jones actually continued to perform work for the College through August 29, 2014, thereby rendering his employment more than one year long (id. at 4). Third, claimants argue that the letters of appointment and termination demonstrate that Jones' appointment stretched from August 28, 2013 through August 31, 2014, thus totaling more than 366 days (Cl Post-Tr Br 5).

For its part, defendant contends that the CBA, which controlled the terms and conditions of claimant's employment, set the start and end dates for the academic year, and limit it to 365 days (Def Post-Tr Br 19). In light of those terms, CUNY maintains Jones' reliance on the letter setting his end date at August 31, 2014 was unreasonable (id. at 21). Further, defendant argues that the statute and CBA both contemplate that a faculty member must be reappointed before he or she can qualify for the employer contribution (id.). Finally, CUNY contends that even if the March 28 termination letter set the terms of employment, the trial evidence does not show that Jones performed work for CUNY during the extended period, and thus he did not engage in more than one year of "service" (id. at 23).

Taking first claimants' arguments that Jones performed actual work for CUNY for more than a year, I find these to be wholly unsupported by the evidence. Nothing in the record indicates that Jones was employed and performed compensable work for CUNY before August 28, 2013. The letter of appointment explicitly stated that his period of appointment would start August 28. Jones never testified that he was ever informed that any of the CUNY-related matters with which he was involved prior to that date - sending several emails and attending a few events - would be credited towards the days worked. Moreover, Hendrey gave testimony - which I credit - that it is not uncommon for an employee to perform preparatory work in the period before their actual employment commences. Were I to accept Jones argument, that every meeting, communication or background session that pre-dates the start of an academic appointment constitutes a day of employment counting towards one's pension (even if - as in Jones' case - it was unpaid), then the black-line 366-day requirement would be transformed into a case-by-case evaluation of every task performed to get ready for a job. Neither the record, nor common sense warrants such a result. I find, rather, that the occasional meetings which Jones attended, or the correspondence in which he engaged, was nothing more than standard preparation that an incoming employee does to familiarize himself with the job he is to perform.

CUNY objected to the introduction of this evidence on the ground that no reference to pre-August 28 work was set forth in the claim, and I reserved on that application. I will presume for present purposes that such a contention was subsumed within claimant's general assertion that he worked more than 366 days, and therefore overrule the objection. --------

Nor is there any proof that Jones engaged in "service" for CUNY between August 27 and 31, 2014, the four-day period that purportedly stretched his employment beyond the 366-day floor needed for an employee contribution. These days fell during the period during which academic staff was on annual leave, and the latter two days were a weekend. There is no evidence whatsoever that anyone at CUNY directed that Jones perform work during this four-day period that allegedly extended his employment. To the contrary, he acknowledged he was "persona non grata" on campus during this time. Further, I credit Hendrey's testimony that any work carried out for additional compensation must be approved by her, and she gave no such approval in regard to Jones. Moreover, by Jones' own testimony, the tasks he carried out from various coffee shops involved his own lobbying to keep his program alive, and such personal matters as ensuring he had insurance coverage. Put simply, an employee cannot perform tasks on his own initiative without any supervisory approval or knowledge, and then claim that by doing so he has extended the time of his employment.

Thus, the only argument available to Jones on the present record is that the March 28, 2014 termination letter set his termination date as August 31, and thus set the length of his employment at 369 days.

I note in this regard that there is no great mystery about what happened here. It appears CUNY employed different sets of dates for its academic year: Article 15.1(a) of the CBA and termination letter reference a year lasting from September 1 through the following August 31, while Article 14.1, provides that the end of the annual leave period (and thus according to Rothman, the end of the academic year) falls on August 26. The payroll records reflect that Jones was paid for an academic year running from August 27, 2013 through August 26, 2014, while his offer letter reflects a third alternative: an academic year running from August 28, 2013 through August 27, 2014. Jones essentially seeks to mix and match these dates by selecting August 28 as the start date of his "service" and August 31 as the end date. I find that claim to be without merit, for a number of reasons.

First, there is no question in this record that CUNY intended Jones' hiring - unless renewed - to be initially for a single academic year. Although the language is not entirely clear, his initial May 20, 2013 hiring letter stated that his work would begin "academic year 2013-2014." His termination letter set his end date at the end of the academic year (albeit using a different set of dates), and the July 9, 2014 rejection of his appeal by Interim President Gizis stated that he would not be rehired for the academic year 2014-2015. It would be entirely inconsistent with this arrangement, and the clear intent of the parties, to find that Jones' term of employment extended into the next academic year.

Second, the notion that the letter extended the period of his work simply makes no sense. The March 28 letter was sent to terminate Jones, and by his own admission its author had no communications with him thereafter, and asked him to perform no tasks. There is no reason why, in that very same letter, the authors would have sought to lengthen his time of service. As the testimony of Hendrey and Rothman make clear, the summer months following commencement are vacation for academic employees, in which they are not required to come to campus. Jones' contention, then, is that CUNY's letter gave him three days more "service" - and it did so at a time when the rest of the professorial staff was on vacation, and in the very letter relieving him of his position.

Third, CUNY did not treat Jones as an employee post-August 26. In particular, it did not list him on its payroll, as its records reflects that he was an employee between August 27, 2013 and August 26, 2014.

Fourth, to the extent Jones' claim can be read to argue that the termination letter constituted a contractual agreement that extended his employment to August 31, I decline to accept that contention. There is no evidence in the record that CUNY and Jones had agreed that his employment terms could be altered by letter, nor that they intended the March 28 letter - which at the same time informed claimant of his termination - to be such a binding agreement (compare United States Fid. and Guar. Co. v. Delmar Dev. Partners, LLC, 14 AD3d 836 [3d Dept 2005] [letter amended contract when contract explicitly permitted such amendment through later correspondence and parties intended letter to effectuate such a modification]).

Finally, although no promissory estoppel claim is pled here, I note that there is no evidence in the record of any detrimental reliance on the termination letter on Jones' part.

Even if I credit his testimony, the only work he performed was to check on his own post-employment benefits, and to try to "save" the program from which he had already been terminated, during a time period when he was on annual leave i.e., vacation. Jones has made no showing that he performed additional work in reliance on the belief that he was still a Queens College employee until August 31, 2014.

In sum, the record evidence does not show that CUNY and Jones entered into an agreement by which he would perform "service" for CUNY for more than one academic year, nor is there evidence that he in fact performed such service, much less that he did so at CUNY's direction. As a result, find that claimants have not proven their claim by a preponderance of the evidence, and need not address defendant's arguments under the CBA.

Claim No. 126671 is therefore dismissed.

Let judgment be entered accordingly.

November 26, 2018

Albany, New York

DAVID A. WEINSTEIN

Judge of the Court of Claims