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Arguing that they constitute a “class of one,” a married couple who are both state college chemistry professors have won the right to take a federal discrimination claim to trial. The professors, who teach at the State University of New York’s Stony Brook campus, allege that their department supervisor violated their civil rights by treating them differently than he treated two other married couples, the six of whom constituted the school’s chemistry department faculty. Denying a defense motion to dismiss Millar v. Ojima, No. CV 03-5511, Eastern District Judge Arthur D. Spatt said that “class of one” claims arise in the context of employment actions where state actors are accused of selective enforcement of disciplinary rules. Because the defendant, Iwao Ojima, is employed by the state university, he was found to have been a state actor, acting under color of state law, giving rise to the federal claims. “The defendant was not only a professor employed by a state university,” Spatt wrote, “but he was the head of the Chemistry Department, which vested him with the authority to make decisions that could affect the other professors in the department.” Spatt, who sits in Central Islip, N.Y., held that the plaintiffs, married professors Michelle Millar and Stephen Koch, had successfully alleged two distinct types of “class of one” discrimination: selective enforcement and that they were subjected to “irrational and wholly arbitrary treatment.” According to the court, Ojima became department chair in 1997. Initially, he maintained the university’s practice of treating its chemistry professors as independent researchers. Soon after, however, he consolidated the plaintiff’s two independent groups — which included both graduate and post-graduate students — into a single entity he called “the Koch-Millar” group. The other two teaching couples were allowed to retain their separate group identities. Over the next six years, Ojima doubled Millar’s course load, moved to eliminate her private office and unilaterally decided that Koch’s private office would be converted into a student lounge. None of the other married professors were said to have been so treated. The professors battled to retain their space, ultimately filing a complaint with the university’s Office of Diversity and Affirmative Action. They averred that in retaliation for this act, Ojima called police officers to ensure that the professors comply with his directives. Millar and Koch claim these acts and others were examples of disparate treatment at the hands of Ojima, and that they were wholly irrational and motivated by personal animus. They also claim it drove them both to psychotherapy. Two years ago, they filed suit alleging state and federal equal protection violations. Ojima moved to dismiss. Among his defenses was the assertion that he had qualified immunity. Spatt turned aside that argument, stating that “under the facts presented in the complaint, the court cannot say as a matter of law that the defendant could not have understood that it would be wrong to maliciously or irrationally treat the plaintiffs differently from the other professors” in the department. Addressing the plaintiff’s discrimination allegations, he cited the 2nd U.S. Circuit Court of Appeals’ 1980 ruling in LeClair v. Saunders, 627 F.2d 606. He said “a claim for disparate treatment based on personal animus lies in a murky corner of equal protection law in which there are surprisingly few cases and no clearly delineated rules apply.” Nonetheless, noting that Koch and Millar were treated collectively, while their married colleagues were not, and that they were unfairly treated when it came to office assignments, he upheld their right to go forward with their suit. In a brief supporting its motion to dismiss, the state took issue with the concept of the plaintiffs as an identifiable class, unsuccessfully arguing that while equal protection rights would be involved in a claim of discrimination based on marital status, there is no valid claim for disparate treatment among the couples. Spatt dismissed the professors’ claims against Ojima for tortious interference with their careers. Reframing their allegations as “tortious interference with a contract,” he ruled that such a claim can only be made where a contractual relationship exists. The professors, he said, appeared to be at-will employees. Acknowledging that they may have intended to claim interference with prospective economic advantage, he also held that they had not shown how their careers had been economically damaged. Jury selection is set for March 14. Ojima is represented by Assistant Attorney General Toni E. Logue, who could not comment on the matter, a spokesman for the attorney general said. Millar and Koch are represented by Scott Michael Mishkin of Islandia, N.Y. He could not be reached for comment.

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