Opinion
No. 97 CV 6800 (RJD).
September 15, 2004
MEMORANDUM ORDER
Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against defendants Herbert H. Lehman College and the City University of New York ("CUNY") alleging that he was terminated because of his Asian-Indian national origin. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted.
The parties stipulated to the dismissal of 1) all claims against Lehman College President Ricardo Fernandez, 2) plaintiff's age discrimination claim, and 3) all state law claims. The Court granted defendants' motion to dismiss the breach of contract claim.
BACKGROUND
Plaintiff's 56.1 Statement, which is largely of a reproduction of the declaration of plaintiff's attorney, does not comply with the local rule. Defendants argue that facts asserted in their 56.1 Statement should therefore be deemed true. Before such a step, however, the Court must first search the record to determine whether defendants' 56.1 Statement is supported by the evidence. See Holtz v. Rockefeller, 258 F.3d 62, 72-75 (2d Cir. 2001).
Plaintiff emigrated from India in 1970 and joined Lehman College as a lecturer in the Academic Skills Department ("ACS") in 1972. In 1978, he was assigned to teach in the English as a Second Language ("ESL") Program. In 1986, he earned a Ph.D. in Applied Linguistics and the following year he was appointed assistant professor in ACS. In 1992, he was granted tenure. Although plaintiff's formal appointment was with ACS throughout his career, he rarely taught courses in that department. Instead, much of his teaching was in the ESL Program.
In the spring of 1995, CUNY faced a significant budgetary shortfall due to reductions in state funding. CUNY's Board of Trustees declared a financial emergency and directed member colleges to take steps to reduce their budgets. As a result, Lehman College announced a retrenchment plan which, among other things, called for the abolition of the ACS Department, including the elimination of all ACS positions and courses. By letter dated May 30, 1995, plaintiff was notified that Lehman was abolishing the ACS Department and therefore plaintiff would be terminated. The termination would take effect after a twelve-month notification period.
CUNY's Bylaws required that Lehman make efforts to locate vacant positions in non-retrenched departments which retrenched faculty members could "efficiently and capably fill." See Def. 56.1 Statement Ex. I pp. 6.6-6.9 (excerpting Bylaws sections 6.10 and 6.13). Vacancies were defined as "a full-time position which the college has the financial ability to fill and intends to fill." Id. Lehman transferred four of plaintiff's twenty ACS colleagues to positions in non-retrenched departments. See Def. 56.1 Statement Ex. M (Spring 1995 post-retrenchment list of status of ACS faculty); Ex. D (January letter from plaintiff discussing transfers). One of the transferred faculty members was tenured and the other three held certificates of continuous employment. Four non-teaching ACS faculty were transferred to a new counseling program. Eight ACS faculty took early retirement or resigned. Plaintiff, along with three other ACS colleagues, was terminated at the end of the notification period. The ACS Department has not since been reestablished.
There is some dispute as to whether plaintiff was terminated or whether he resigned. The Court will accept plaintiff's assertion that he was terminated for purposes of this motion.
In essence, plaintiff alleges that Lehman used the retrenchment process as a pretext to terminate him because of his national origin. Plaintiff notes that neither he nor the other Asian-Indian ACS faculty member remained at Lehman after retrenchment. He also alleges that Lehman gave more favorable treatment to non-Asian-Indian faculty during retrenchment. For their part, defendants maintain that budget constraints — not plaintiff's national origin — motivated all personnel decisions during retrenchment.
On September 16, 1997, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). The EEOC dismissed the complaint as untimely. On November 18, 1997, plaintiff timely filed this action. Defendants moved to dismiss, arguing that plaintiff's EEOC charge was untimely. The Court denied the motion because factual issues precluded dismissal. Defendants now move for summary judgment arguing that 1) plaintiff's claims are time barred; 2) plaintiff fails to establish a prima facie case; and 3) plaintiff cannot rebut defendants' legitimate, non-discriminatory explanation for his discharge.
DISCUSSION
I. Summary Judgment
A motion for summary judgment is granted only where "there is no genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In evaluating such motions, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The moving party bears the burden of proving the absence of genuine, material factual disputes. "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir.), cert. denied, 124 S. Ct. 53 (2003) (internal quotes and citations omitted).
Thereafter, the party opposing summary judgment must point to specific facts which show there is a genuine issue for trial. He "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Conclusory allegations, without evidence, are insufficient to defeat a motion for summary judgment. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
II. Timeliness
Defendants argue that plaintiff's case is time barred because he filed his EEOC complaint beyond the applicable 300 day filing period. 42 U.S.C. § 2000e-5(e)(1); Butts v. City of New York Dep't of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993) (plaintiff must file EEOC complaint within three hundred days of notice of the discriminatory act). Defendants note that a letter from plaintiff to the Lehman administration in January 1996 raises many of the allegations that form the basis of this suit. Thus, they argue, plaintiff was aware of his claims by January 1996 but waited to file with the EEOC until September 1997, more than 300 days later. Defendants contend this bars plaintiff's suit.
The Court agrees that those claims of which plaintiff was aware in January 1996 are time-barred. However, it appears that at least some of plaintiff's claims accrued after the January letter and thus fall within the filing period. Such claims include Lehman's alleged failure to transfer plaintiff to the English Department or offer him an ESL position in 1996. Indeed, discrete failure-to-transfer and failure-to-hire claims are independently actionable, regardless of whether the underlying termination claim is time barred. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) ("Each discrete discriminatory act starts a new clock for filing charges alleging that act . . . The existence of past acts and the employee's prior knowledge of their occurrence . . . does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed."). Therefore, rather than parse which of plaintiff's claims are timely, the Court will resolve the motion on the merits.
III. National Origin Discrimination under Title VII
Courts apply a three-step burden-shifting analysis to claims of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff must establish a prima facie case by demonstrating 1) membership in a protected class; 2) qualification for the contested position; 3) an adverse employment action; and 4) that such action took place under circumstances giving rise to an inference of discrimination.See id. at 802. The plaintiff's burden of establishing a prima facie case of discrimination is de minimis. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 206 (2d Cir. 1995).
The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action.Weinstock, 224 F.3d at 42; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); St. Mary's Honors Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Defendant's explanation must be "clear and specific."Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1226 (2d Cir. 1994). Although "the defendant must produce evidence `which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action,'" the defendant's burden at this stage is one of production, not persuasion. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000) (quoting St. Mary's, 509 U.S. at 509); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) ( en banc).
Once the defendant articulates such an explanation, the presumption of discrimination created by the prima facie case drops from the picture. Weinstock, 224 F.3d at 42; Fisher, 114 F.3d 1336. To survive summary judgment, the plaintiff must then offer evidence suggesting that defendant's proffered reason is pretext for intentional discrimination. Plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not, [discrimination] was the real reason for the discharge.'" Zant v. KLM Dutch Airlines, 80 F.3d 703, 714 (2d Cir. 1996) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994)); McDonnell Douglas, 411 U.S. at 802; Gallo, 22 F.3d at 1225.
Defendants argue that plaintiff fails to establish a prima facie case because he cannot show that his termination and related actions occurred under circumstances giving rise to an inference of discrimination. The Court disagrees. Plaintiff offers specific comparisons between himself and non-Asian-Indian faculty. Although this does not create a strong inference of discrimination, the Court finds this sufficient to meet plaintiff's minimal prima facie burden. The burden then shifts to the defendant to proffer legitimate, non-discriminatory explanations for the challenged employment actions.
Most broadly, defendants maintain that plaintiff was terminated as a result of the decision to abolish the ACS Department during the fiscal crisis. Absent evidence suggesting improper motive, such business decisions are immune from judicial review. See, e.g., Viola v. Philips Medical Sys. of North America, 42 F.3d 712, 717 (2d Cir. 1994) (affirming summary judgment for employer when "it implemented a business-justified, company-wide reduction in its work force in response to changes in business emphasis and economic necessities, and it relied upon non-discriminatory guidelines in selecting the employees to be fired"); Meng v. Ipanema Shoe Corp., 73 F. Supp. 2d 392 (S.D.N.Y. 1999). Defendants go further, however, and respond to each incident raised by plaintiff as evidence of discrimination. Each is discussed in turn below.
A. Transfers of Plaintiff's ACS Colleagues
Plaintiff contends that defendants discriminated against him because Lehman transferred four of his ACS colleagues but terminated plaintiff. These colleagues include Sheila Smith-Hobson (transferred to Early Childhood Education), Elaine Avidon (transferred to Early Childhood Education), Flavia Bacarella (transferred to Art), and Juliana Bassey (transferred to Secondary Education). Plaintiff also asserts that defendants "created" vacancies to retain these colleagues but refused to create a position for him. Pl's Decl. ¶ 158 (plaintiff alleges that these positions were "specially created . . . at a time when Lehman faced a budget shortfall of 6 to 8 million dollars and when scores and even hundreds of other employees were terminated."). Although plaintiff credits "nepotism" for this alleged disparate treatment, Naval Decl. ¶ 153, he presumably maintains that his national origin was at least a partial motivation.
These claims are also time barred. Plaintiff directly referenced these transfers in his January 1996 letter. Therefore, he was clearly aware of this claim of disparate treatment at least by January 1996 but failed to file his EEOC complaint within 300 days of that date.
In response, defendants detail why these ACS faculty members were uniquely qualified to fill the vacant positions. See Def. Memo of Law at pp. 9-10; Def. Reply Memo at pp. 33-34, n. 9. Plaintiff offers no evidence that he had experience in these areas or that he was qualified for such positions. Neither does he offer evidence to suggest that defendants' explanations are pretext for discrimination. Absent evidence, it is not for the Court to second-guess the judgments of academic qualifications made by Lehman. See, e.g., Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996) (intentional discrimination claim cannot be grounded merely on plaintiff's subjective beliefs about his qualifications);Zahorik v. Cornell University, 729 F.2d 85, 94 (2d Cir. 1984).
Avidon and Smith-Hobson were transferred to the Department of Early Childhood and Childhood Education. Avidon taught courses including "Methods of Teaching Reading in the Primary Grades" and "Human Relations and Learning." Smith-Hobson taught "Using the Computer in the Classroom" while running the Elementary School Teachers Network. Bassey was transferred to what is now called the Department of Middle and High School Education to teach courses such as "Foundations of Education," "Comparative Education," and "Current Issues and Problems in Education." Bacarella was transferred to the Art Department to teach courses including "Relativity of Color" and "Intermediate and Advanced Painting."
Defendants also dispute plaintiff's allegation that Lehman created positions for the transferred ACS faculty and that therefore Lehman had an obligation to create a vacancy for plaintiff. Defendants emphasize that retrenched faculty were transferred only to existing vacant positions which the college intended to fill and which the faculty were qualified to fill.See, e.g., Morgan Dep. pp. 21-22, 55-56 (disputing that positions were created for non-Asian-Indian faculty members but not for plaintiff); Wille Dep. at 67 (concerning transfers to non-retrenched departments, "those lines had already been allocated to the department . . . the lines were available to the department and the department had a need for faculty with those areas of speciality and that's how the appointments were made."). Again, plaintiff offers no evidence tending to undermine this explanation much less suggesting that it was pretext for intentional discrimination.
Thus, plaintiff's disparate treatment claim concerning these transfers must be dismissed. To start, these claims are time barred. Furthermore, plaintiff's unsupported allegations are insufficient to withstand defendants' detailed explanations of their actions. See, e.g., O'Sullivan v. New York Times, 37 F. Supp. 2d 307 (S.D.N.Y. 1999) (collecting cases in which employer's business judgment not open to question by court absent evidence of discriminatory motive).
B. The ESL Program
Plaintiff also argues that Lehman's refusal to retain him in the ESL Program after retrenchment was motivated by discriminatory animus. Plaintiff points to various full-time and adjunct faculty who taught ESL during and after retrenchment. Plaintiff maintains this demonstrates the existence of funding and vacancies in ESL which he should have filled. Likewise, he argues that when the ESL Program and its faculty were relocated to the English Department in 1996, he should have been offered a position there. Defendants, however, maintain that the structure of Lehman's budget — not plaintiff's national origin — motivated these staffing decisions.
Plaintiff explicitly identifies Nathalie Bailey and Janice Massa, who had taught ESL with plaintiff and were not terminated during retrenchment; Ursula Hoffman and Lynne Van Voorhis, who taught in ESL for the first time in 1996; and Bertrade Mbom, who taught ESL at various points during and after retrenchment.
To start, defendants note that faculty appointments are made to departments, not programs such as ESL. See Defts' 56.1 Statement, Ex. I (CUNY bylaw section 6.6(b) provides that "all original appointments to the instructional staff shall be made to a department."); Fernandez Decl. ¶ 23 (the "ESL program was an interdepartmental program" and "no appointments were made directly to [it]"); Wille Decl. ¶ 12; Ward Dep. pp. 116-117, 158-160; Lahn Dep. p. 90 (noting ESL did not have any of its own budget lines for full-time faculty). This is important because a faculty member's budget line originates with his department of appointment, regardless of where he teaches. Thus, with the abolition of ACS during retrenchment, the budget line which had funded plaintiff's work in ESL no longer existed. See Defts' 56.1 Statement, Ex. G, p. 12; Fernandez Decl. ¶ 23 (plaintiff's "budget line and salary originated with the Academic Skills Department); Lahn Dep. at pp. 49-50, 50, 71, 90 ("what was retrenched were positions, full-time positions. Full-time positions are otherwise characterized as [budget] lines.").
Significantly, each faculty member plaintiff raises as a point of comparison was appointed in a department unaffected by retrenchment. For instance, Professors Bailey and Massa were appointed in the Puerto Rican Studies ("PRS") Department which was not retrenched. Thus, PRS continued to provide budget lines to fund Massa and Bailey's work in the ESL Program. Def. Memo in Opp. at p. 28; Ward Dep. p. 143-45 ("Bailey and Massa were not retrenched and did not need to be rehired. For technical reasons, there was no question of their continuing" to teach ESL.), 48-49 (noting that had plaintiff been originally appointed to PRS, not ACS, he would probably still be teaching ESL at Lehman). Similarly, Professors Hoffman and Van Voorhis were appointed in the Department of Languages and Literatures, which was also unaffected by retrenchment. They were assigned to teach ESL in 1995 to fulfill the teaching load obligations associated with their departmental budget lines.See Wille Decl. ¶¶ 14-15; Ward Dep. pp. 159-166.
With respect to Bertrade Mbom, defendants note that she was on a joint appointment between Brooklyn College and Lehman, with Brooklyn funding her budget line. Thus, defendants maintain, Mbom's work in the ESL Program did not indicate the existence of extra money which could have funded plaintiff. Ward Dep. pp. 123-124; Ex. II.
Similarly, defendants note that budget constraints motivated the use of adjunct faculty to teach ESL. Unlike full-time faculty members, adjunct faculty enjoy no right to re-appointment after the expiration of their employment contracts. See Wille Decl. ¶ 15; Ward Decl. ¶ 5 (adjuncts "are part-time hourly employees" compared to "full-time personnel, meaning instruction staff hired or appointed on a full-time basis by the academic departments from which the ESL instructors were drawn"). Thus, Lehman concluded that "it was economically prudent" to employ part-time adjuncts in ESL. Wille Decl. ¶ 15. Notably, plaintiff nowhere argues that he wanted an adjunct position, much less that he applied for and was rejected from one.
Finally, defendants maintain that budget issues prevented Lehman from transferring plaintiff to the English Department when it moved the ESL Program there, along with Massa and Bailey, in 1996. Defendants note that Massa and Bailey's PRS budget lines were transferred to the English Department with them, providing the funding for their work with the ESL Program. See Pl's 56.1 Statement, Ex A, Ward Dep. pp. 81-82; Losada Dep. p. 66. Plaintiff, by contrast, had no intact funding to take with him to the English Department.
Thus, for each claim, defendants offer persuasive and detailed explanations that the structure of Lehman's budget — not plaintiff's national origin — motivated the contested personnel decisions. Courts have long held that neutral business judgments such as these meet defendants' burden of rebutting plaintiff's prima facie case. See, e.g., Viola, 42 F.3d at 717; Faldetta v. Lockheed Martin Corp., 2000 U.S. Dist. LEXIS 16216, *26 (S.D.N.Y. 2000); Gallo, 22 F.3d at 1222. Thus, to survive summary judgment on this claim, plaintiff must point to evidence which suggests that these explanations are pretextual. Plaintiff is unable to do so.
Plaintiff argues that defendants' adherence to this formality was a pretext for discrimination. He contends that departmental appointments are meaningless, pointing to examples of professors teaching courses almost exclusively outside their home departments. Pl's 56.1 Statement ¶ 44. However, plaintiff offers no evidence to cast doubt on the fact that departmental appointments are crucial for one reason: a professor's department of appointment provides the budget line to fund his or her position.
C. Position T-1629
Plaintiff also alleges discrimination based on Lehman's failure to hire him into a tenure-track assistant ESL professorship which was vacant in early 1996. Def. 56.1 Statement, Ex. GG (posting for vacancy T-1629). Lehman posted a vacancy notice for the position in the winter of that year, prior to plaintiff's formal termination. Although the posting was joint with Brooklyn College, applicants were to send resumes to Lehman's English Department. In early February, plaintiff received a handwritten note from Dawn Ewing-Morgan, Lehman College's Affirmative Action Officer, suggesting that he apply. Pl's 56.1 Statement, Ex. R. Plaintiff claims he applied but was not interviewed. Pl's Memo in Opposition at p. 11. On April 8, 1996, Lehman announced the cancellation of the search due to a newly-declared fiscal exigency for the 1996-97 academic year. Defts' 56.1 Statement, Ex. HH; Wille Decl. ¶ 16.
Plaintiff maintains, however, that Lehman in fact hired Mbom for the position. Plaintiff notes that Mbom taught ESL at Lehman in the fall of 1996. See Pl.'s Memo in Opposition at p. 13 (noting Mbom taught ESL in 1996 and noting her race). Plaintiff also argues that the T-1629 posting and the employment of Mbom demonstrate that defendants had the financial ability to pay for additional ESL instructors and that therefore defendants should have retained plaintiff. See Prussan Dec. ¶ 107.
Defendants again offer budgetary reasons to explain this series of events. To start, defendants maintain that they did not hire anyone for position T-1629, that the search was never reinstated, and that during that period they did not hire any full-time, tenure-track ESL professors. There is no evidence to the contrary. Thus, they claim, plaintiff could not have been the victim of any discriminatory decision not to hire him. Def. Memo at p. 31. See also Wille Decl. ¶ 16; Losada Dep. p. 101; Wille Dep. p. 51 ("no one was hired" to fill the position); Lahn Dep. p. 69 ("I know no one was hired.").
Defendants also stress that Mbom taught ESL as a part-time adjunct, not a full-time, tenure-track professor. Def. Memo at p. 30. See also Mbom Resume, Ex. M to Pl's 56.1 Statement (describing fall of 1996 appointment as "Adjunct-Assistant Professor, Department of English, Brooklyn/Lehman Colleges."); Ex. II to Def. 56.1 Statement (memo from ESL Program Director listing Mbom as an adjunct teacher of ESL in fall of 1996). Thus, defendants claim, Mbom's position as an adjunct was not comparable to the cancelled T-1629 notice, nor to the type of position to which plaintiff claims he was entitled. Indeed, plaintiff at no time argues that he wanted, applied for, or should have been transferred to an adjunct position such as Mbom's. Rather, he claims that Lehman was obligated to offer him a full-time, tenured professorship.
Again, plaintiff offers no evidence to undermine defendants' explanations or suggest they are pretextual. Plaintiff claims that Mbom was favorably treated because Lehman wanted to ensure that her husband, who also taught at Lehman, would remain. See, e.g., Pl's Decl. ¶ 111(d). Plaintiff does not explain how this type of favoritism betrays defendants' explanation of the difference between Mbom's adjunct position and the cancelled search for a full-time, tenure-track professor. Neither does plaintiff explain how it creates an inference that his national origin in any way motivated these decisions.
Plaintiff also points to alleged inconsistencies in defendants' deposition testimony to support his claim of pretext. For example, although Lehman President Fernandez did not remember approving the posting of position T-1629, he stated that he "believe[d] Professor Mbom was hired" as a result of that posting. Fernandez Dep. p. 50. Later in the deposition, plaintiff's counsel questioned Fernandez about the cancellation of the search. Fernandez clarified his earlier response, noting that he "believe[d] Bertrad Mbom was hired" but did not know "if it was as a result of this search or some other search later on."Id. at 52-54. See also Losada Dep. at 92, 99-101 (although Dean Losada suggested Lehman hired Mbom for the position, he later claimed that Lehman "didn't hire anybody" because it "had to stop all searches" after retrenchment was announced for 1996 as well). Plaintiff maintains that these "contradictions cast grave doubts about defendants' veracity." Pl's Decl. ¶ 112.
The testimony suggests, at the most, a measure of uncertainty on the part of Dean Losada and Lehman President Fernandez. However, even were the Court to accept plaintiff's interpretation of this testimony, it does nothing to undermine defendants' budgetary explanations or the uncontroverted evidence that Mbom worked only as an adjunct in the fall of 1996.
D. Statistical Evidence
Plaintiff also contends that Lehman paid particular attention to retaining other minority faculty, while ignoring the impact of retrenchment on Asian-Indian faculty members. Plaintiff notes that the percentage of Lehman faculty who were Asian-Indian declined from three to two percent during retrenchment. Pl's Decl. ¶¶ 67-70, citing Defts' 56.1 Statement, Ex. Y ("Affirmative Action Report"). Plaintiff characterizes this as a "huge decline of 33% in just one year." Pl's Decl. ¶ 67. This compares to modest increases of Hispanic faculty (rising from 7.6 to 8.9 percent), black faculty (6.2 to 7.4 percent), and Puerto Rican faculty (3.1 to 3.2 percent). Id. at ¶ 68. He also argues that defendants violated their own affirmative action policies, which required giving special consideration to faculty members of all under-represented groups. Pl's Decl. ¶¶ 46-70. Thus, he concludes that Lehman "chose to save other minorities and women and/or hire and/or transfer other minorities and women rather than transfer [me]." Pl's Oppos. Memo., p. 8.
Plaintiff attempts to buttress his claim by pointing to a handful of incidents which he characterizes as attempts by Lehman to fire three Asian-Indian colleagues. See Pl's Decl. ¶¶ 37-45. All but one of these incidents occurred in the 1970s under previous Lehman administrations. None involved the decision makers responsible for the retrenchment process or plaintiff's termination. It is unclear how these allegations aid plaintiff's claim. See, e.g., Haskell v. Kaman Corp., 743 F.2d 113, 121 (2d Cir. 1984) (ten terminations over an eleven-year period insufficient sample size to support inference of age discrimination).
The statistical evidence offered by plaintiff is insufficient to save his claims. Asian-Indian faculty at Lehman decreased from nine to seven as a result of retrenchment. However, this sample size is simply too small to support a claim of intentional discrimination. See e.g. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621 (1974); Pollis v. New School for Social Research, 132 F.3d 115, 121 (2d Cir. 1997);O'Sullivan v. New York Times, 37 F. Supp. 2d 307 (S.D.N.Y. 1999).
Plaintiff's arguments regarding the affirmative action policies also fall short of the mark. To start, defendants provide detailed explanations of what the affirmative action policies in fact required and how defendants complied with those mandates. Def. Reply Memo at 23-28; Def. 56.1 Statement Ex. W at 10-11 (denial of plaintiff's union grievance detailing how defendants complied with the affirmative action mandates). Furthermore, defendants correctly note that absent other evidence, an alleged failure to follow affirmative action policies in general is insufficient to support a claim of intentional discrimination in a particular plaintiff's case.
E. Alleged Bylaw and Guideline Violations
Finally, plaintiff maintains that defendants violated CUNY Bylaws and Lehman's Retrenchment Guidelines in ways that led to his termination. For example, plaintiff argues that it was improper under the Bylaws for Lehman to transfer untenured ACS faculty but not tenured faculty, such as plaintiff. Plaintiff also maintains that the Bylaws required Lehman to transfer retrenched faculty to other departments in order of seniority. Finally, plaintiff contends that untenured faculty from non-retrenched departments, such as Massa and Bailey, should have been terminated prior to tenured faculty, such as plaintiff. Plaintiff's arguments are largely a reiteration of his contract law claims, which this Court dismissed in its previous order. Presumably, however, plaintiff offers them again, in the context of this motion, as evidence of intentional discrimination on the part of defendants.
Defendants dispute that they violated the relevant rules in any way, much less that any such violations support an inference of intentional discrimination. As defendants note, plaintiff raised these precise claims at each stage of the union grievance procedure and the special retrenchment appeals process. See Def. 56.1 Statement Exs. W Z. They were roundly rejected each time. Id. Furthermore, defendants review in detail why their actions in fact complied with all of the relevant rules. See Def. Reply Memo pp. 20-28.
For instance, defendants note that the Bylaws only required that colleges make efforts to find vacant positions for tenured faculty first. Thereafter, the colleges had full authority to transfer untenured faculty. Defendants further note that inquiries were made on plaintiff's behalf, but no vacancies existed which matched his qualifications. See Defs' 56.1 Statement ¶¶ 29-32; Fernandez Decl. ¶¶ 24-29; Wille Decl. ¶¶ 6-11; Losada Decl. ¶ 8; Exs. W Z. Thus, they maintain, it was permissible to transfer untenured retrenched faculty but not plaintiff.
Defendants also note that the Retrenchment Guidelines provide that within a particular retrenchment unit, untenured faculty are terminated before tenured faculty. Def. 56.1 Statement Ex. 5 at pp. 13-14. However, when the entire unit is discontinued and all faculty terminated, the rule has no relevance. See Id.; Ex. Z at 6.
Finally, defendants contest plaintiff's interpretation of Bylaw Section 6.11. Under that section, a seniority-ranked list, called the preferred eligible list, is created for each retrenchment unit. The list governs the order in which faculty are terminated from or reappointed to the retrenched unit itself. However, the list does not control transfers to non-retrenched departments.See Def. Reply Memo Exs. A B. Because ACS was fully eliminated and never reestablished, the preferred eligible list had no bearing on the transfer process.
Plaintiff offers no evidence to undermine defendants' interpretation or to support his own tortured reading of these rules. More importantly, plaintiff offers no evidence which would suggest that such violations, if they in fact occurred, were motivated by discrimination. F. Gallo and Montana
Plaintiff relies on two Second Circuit cases to argue that summary judgment is inappropriate. Gallo, 22 F.3d 1219,Montana v. First Federal Savings, 869 F.2d 100 (2d Cir. 1989). In light of the discussion above, the Court finds neither case suggests plaintiff can defeat summary judgment based on the evidence in this case.
In Montana, the plaintiff sued for age discrimination after she was fired from employer's personnel department during corporate restructuring. The employer explained that Montana was terminated as a result of the centralization of personnel operations in its Rochester office and concurrent reduction of the workforce. The district court found that plaintiff failed to offer sufficient evidence of pretext and granted summary judgment for the employer.
On appeal, the Second Circuit reversed. The court highlighted aspects of the evidence in the record, including 1) Montana was the oldest and highest paid non-clerical employee in her department, 2) she was not offered the option of transferring to the Rochester office, 3) she was the only department head whose staff continued without her, 4) her duties were assigned to a younger co-worker who was already working overtime, 5) the shift of duties increased that employee's workload 15-20%, and 6) the employer failed to consider Montana for a newly-created position and instead hired a much younger woman with less experience to fill the job. Montana, 869 F.2d at 105-06. Perhaps most troubling was the fact that after the so-called reduction-in-force, the employer had actually increased the number of employees in its personnel department. Id. The Second Circuit concluded that "when viewed together, these circumstances create a genuine factual issue as to whether [defendant's] stated reason for terminating Montana — the centralization of its personnel department in Rochester and accompanying reduction in force — was pretextual . . ." Id.
Similarly, the employer in Gallo rebutted plaintiff's age discrimination claim with a corporate restructuring explanation. Before her termination, Gallo's primary duties had involved publishing two newsletters and managing the production of three other publications. In response to a business downturn in the early 1990s, Prudential eliminated Gallo's department. One of Gallo's publications, which accounted for 60% of Gallo's workload, was transferred to younger employees in the new Marketing Department. Gallo's three other publications were eliminated and Gallo was terminated.
Within nine months of her termination, Prudential launched a number of new publications that were similar to those Gallo had previously managed. Prudential also solicited job applications to fill vacancies created by the departure of four employees from the Marketing Department. Gallo applied for a job which involved managing a publication nearly identical to one that she had previously produced. However, her former employer refused to interview her and claimed he was looking for a "different skill set." 22 F.3d at 1223. Prudential instead hired other, younger candidates for the positions.
In her suit, Gallo contended that Prudential had resurrected her former responsibilities while refusing to re-hire her because of her age. Prudential, on the other hand, argued that because it had restructured the Marketing Department, "the persons who filled the vacancies [were] not responsible for Gallo's previous duties." 22 F.3d at 1223. Prudential also maintained that the reduction-in-force and Gallo's subsequent termination, were necessary to "meet its budgetary goals." 22 F.3d at 1226.
In reversing the district court's grant of summary judgment, the Second Circuit emphasized a number of facts that suggested Prudential's justification was pretext for age discrimination. The court questioned Prudential's claim that Gallo was unqualified for the open positions, since the jobs involved managing publications similar to those which Gallo had run prior to her termination. The court also noted that, contrary to Prudential's assertion, the "plain language" of its bylaws obligated Prudential to give preference to Gallo when hiring for open positions. 22 F.3d at 1228. The court noted that Prudential offered no "official company statement" or other evidence to support its view of the rule. Id. at 1226.
Superficially, there are similarities between those cases and plaintiff's situation. However, on close inspection, the cases differ markedly. In Gallo and Montana, the defendants rebutted plaintiffs' prima facie cases with only general reduction-in-force explanations. They failed to respond to or explain the questionable circumstances raised by the plaintiffs and emphasized by the Second Circuit. Viewed in the light most favorable to the plaintiffs, the evidence in those cases indeed suggested pretext. Here, however, the record simply does not support plaintiff's claims. For each point of comparison raised by plaintiff, defendants respond with detailed explanations supported by evidence in the record. In response, plaintiff offers only allegations, not evidence that casts doubt on defendants' explanations or suggests discrimination played any role whatsoever. Without such evidence, plaintiff's allegations are insufficient to survive summary judgment. Gallo andMontana do not suggest otherwise. See Viola, 42 F.3d at 717-19 (as here, plaintiff's evidence was insufficient to raise a material issue as to pretext in light of defendant's detailed evidence that it followed non-discriminatory standards in implementing general reduction-in-force); Woroski, 31 F.3d at 109; Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir. 1982) (anti-discrimination law "does not authorize the courts to judge the wisdom of a corporation's business decisions.").
CONCLUSION
In the end, plaintiff has only what he offered at the start: an allegation that his national origin must be the reason he was fired while others remained at Lehman after retrenchment. See, e.g., Ex. KK, Naval Dep. pp. 28-29. Defendants offer overwhelming evidence that budgetary constraints, academic qualifications, and fiscal structure explain each contested personnel decision. With no evidence to undermine these explanations or to support his allegation that national origin motivated defendants' choices, plaintiff cannot defeat summary judgment.
The Court is sympathetic to plaintiff. After years of loyal service to his employer, it is unfortunate that Lehman could not find a place for Professor Naval. However, searching the record, there simply is no evidence that plaintiff's national origin played any role in the events leading to his termination. Absent evidence "upon which a reasonable trier of fact could base the conclusion that [national origin] was a determinative factor in defendants' decision to fire him," plaintiff cannot survive summary judgment. Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000). Defendants' motion for summary judgment is granted. The Clerk of the Court is directed to close the case.
SO ORDERED.