Opinion
00-CV-0718.
January 31, 2002
DECISION ORDER
Plaintiff originally brought this action alleging discrimination and retaliation by Union College and Lawrence J. Hollander ("Hollander") individually and in his official capacity based on his race and national origin pursuant to 42 U.S.C. § 2000(e) et seq. Plaintiff also alleged claims under New York state law. By affidavit dated October 17, 2001, Plaintiff withdrew all claims against Hollander in his individual capacity and all state law claims. Defendants now move for summary judgment on the remaining claims.
I. Background
At all relevant times, Plaintiff was a Professor of Electrical Engineering at Union College. At all times relevant to the complaint against him, Hollander was serving as the Dean of Engineering at Union College. Plaintiff alleges that Union College discriminated against him by denying him merit raises in 1986 and 1988. Plaintiff alleges that the criteria used by the Faculty Review Board (FRB) was subjective and thus, discrimination and retaliation motivated the FRB to deny him merit increases during the two cycles.
Plaintiff also alleges that he was discriminated against by being denied appointment to the position of Chair of the Electrical Engineering Department and that he was denied appointment to the Dean of Engineering position.
A. Salary and Appointments
In 1986 and 1988, Plaintiff was nominated by his Chair to receive a merit raise. About 1/3 of the faculty were nominated for a merit raise each year and only about 1/3 of those nominated actually received a merit raise. In 1986, Plaintiff was denied a merit raise. He alleges that Dr. Jewell, a Mechanical Engineering Professor, told him that he was denied a merit raise because Dr. Jewell had rated Plaintiff's research last in the Electrical Engineering Department. (Gajjar Aff. p. 7). Dr. Jewell denies any recollection of such a conversation with Plaintiff, but does admit he would not be qualified to rate Plaintiff's work. (Jewell Dep. 13-15). Although it appears Plaintiff requested the members of the Faculty Review Board to tell him why he was denied the merit raise, no other reason was provided at that time.
In 1988, Plaintiff was again denied a merit raise. Plaintiff had three patents issued to him by that time. When Plaintiff requested the reason he had been denied the merit raise, he alleges that Dr. Millilo told him that Dr. Ludwig, a Philosophy Professor, told the FRB that Plaintiff's patents were worthless and should not count very much. (Gajjar Aff. p. 7). Plaintiff states that at no time was he told that his teaching was a problem. (Gajjar Aff. p. 7).
After he filed an amended complaint with the New York State Human Rights Department in 1992, he received a letter from Dr. Underwood which points out complaints by some students regarding Plaintiff's teaching. Plaintiff asserts that this letter was pretextual, written in order to give the Defendants a reason for denying him merit raises. (Gajjar Aff. p. 7).
Plaintiff alleges that he was not appointed to the Electrical Engineering Chair in 1989 because of discrimination or retaliation. Defendants claim that Plaintiff was not appointed to the Chair position because the faculty was not supportive of such an appointment. Plaintiff claims that the faculty were not involved in such a decision and that he was not personally asked about his preference for the Chair position. (Gajjar Aff. p. 6).
Finally, Plaintiff alleges that he was discriminated against in January of 1989 by not being promoted to the position of Dean of Engineering. At that time, Dr. Craig stepped down from the position. Union College was facing a review by the Accrediting Body for Engineering (ABET). A poor review would have meant that Union College would lose its accreditation in engineering. (Underwood Aff. ¶¶ 14-15). Hollander was hired by the College without a national search. At the time, Hollander was a visiting professor. Hollander had significant experience with ABET evaluations and had served on an ABET team. (Hollander Reply Aff. ¶ 10). Plaintiff alleges that he was at least as qualified as Hollander, having written an ABET report for Union, and that in some ways he was more qualified. For instance, Plaintiff had earned his Ph.D. and had done significant research and publication whereas it appears Hollander had not.
B. Allegations against Hollander in his Official Capacity
Plaintiff alleges that Hollander, in his capacity of Dean of Engineering, retaliated against him and discriminated against him by: singling him out at faculty meetings to humiliate him; by accusing him of using the college machine shop for his personal use without basis and ordering the machine shop to stop work on his projects and the projects of his students; and by telling Plaintiff that he was "not a desirable minority." (Pl. 7.1 Stat., ¶ 29).
Faculty Meetings
Union College was scheduled for the ABET accreditation visit in 1991. It appears that prior to this visit, there were at least two engineering faculty meetings held. At the first of these meetings Hollander stated that things would go well if some members of the department were not too hard on the college. (Craig Dep. p. 62-63). Hollander did not mention Plaintiff by name at the first meeting. At the second meeting Hollander repeated his statement and used Plaintiff's name. It appears that Plaintiff attempted to protest, but was cut off by Dr. Craig, who defended Plaintiff. (Craig Dep. p. 62-63). Plaintiff has alleged that he felt humiliated by these comments to him. (Gajjar Aff. p. 6).
Machine Shop
In addition to teaching, Plaintiff was a consultant for the Watervilet Arsenal in 1991. Consulting for outside companies was a common practice at Union College, and even encouraged. In the course of his consulting, Plaintiff came up with an idea that might benefit the Watervilet Arsenal. He believed the research on his idea would be a good student project. It is undisputed that Union College was having difficulty developing student projects, an ABET requirement. The Watervilet Arsenal did not request Plaintiff to do the work, but they were interested in the outcome of the project. Plaintiff approached Dr. Craig and discussed the project with him. Craig was enthusiastic about the project and told him he could use the machine shop to have tools made for the project. (Craig Dep. 69-70). Plaintiff then approached the machine shop and discussed the tools with them. He asked them to keep track of their hours because he was hoping to have the Watervilet Arsenal fund some of the work if the project was successful. At some point, Plaintiff decided he would make a donation to the college to help with the funding of student projects. He approached Dean Craig to ask what the procedure for such a donation was. He was sent to President Hull, who told him to speak to Hollander. When Plaintiff approached Hollander, Hollander accused him of using the machine shop for his personal consulting work. He then ordered the machine shop to cease work for Plaintiff or his students. Plaintiff eventually paid for the work done to make the tool for the student project. (Gajjar Dep. 66-69).
Statement
During a conversation with Hollander and Professor Chang in the fall of 1990, Hollander was complaining about the difficulty of hiring minority faculty. Plaintiff stated that he was a minority. Hollander responded to this that Plaintiff was "not a desirable minority." Hollander states that he cannot remember this conversation. Plaintiff points out that Hollander did not deny the conversation to the Human Rights investigator, but stated that Plaintiff had misconstrued the comment. (Gajjar Aff. p. 6).
C. Proceedings before the New York State Division of Human Rights
On May 2, 1983, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights (NYSDHR). The NYSDHR issued a decision that no probable cause existed to further investigate discrimination. Plaintiff appealed this determination, but the decision was upheld by the New York State Appellate Division, Third Department. See Matter of Gajjar v. Union College, 107 A.D.2d 917 (3d Dept. 1985).
On or about February 15, 1989, Plaintiff filed a charge of discrimination with the NYSDHR, alleging retaliation by the Defendants because of his previous complaint. Defendants point out that in this complaint, the box to allege discrimination was not checked and that the allegations of that complaint related solely to retaliation. (Def. 7.1 Stat. ¶ 8). Plaintiff admits this, but states that the issue of discrimination was actually litigated in the Human Rights proceeding. (Pl. 7.1 Stat. ¶ 8). Around May 6, 1991, Plaintiff amended his Human Rights complaint to include new allegations of retaliation and allegations of discrimination. On December 9, 1993, NYSDHR issued a finding of probable cause on the 1989 and 1991 administrative complaints. For some reason, on December 17, 1999, that determination was changed to a "no probable cause" finding. Plaintiff received his "Dismissal and Notice of Rights" letter some time in February of 2000. It appears that the initial complaint was filed on May 8, 2000. (Docket #1). Defendants apparently contest that this complaint was served on them, although they have not made any motion regarding this. (Def. 7.1 Stat. ¶ 13). An Amended Complaint was filed on August 18, 2000. (Def. 7.1 Stat. ¶ 13). Defendants answered the amended complaint.
II. Discussion
A. Standard for Summary Judgment
It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c).
The court is mindful that the Second Circuit has cautioned that on a motion for summary judgment, "especially in the context of a claim of discrimination, the court should not view the record in piecemeal fashion." Fitzgerald v. Henderson, 251 F.3d 345, 360 (2d Cir. 2001). Further, where the intent of one party is in question, as is often the case with employment discrimination claims, the "court must be cautious about granting summary judgment." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). However, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
B. Continuing Violation
Defendants first moves to dismiss the claims based on the denial of salary increases in 1986 and 1988 as time barred. Plaintiff alleges that the claims are timely based on the continuing violation doctrine. A continuing violation exists where there is proof of specific ongoing discriminatory policies or practices, or where "specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Where a continuing violation exists, the Plaintiff may bring suit based on all of the conduct, even if it occurred outside of the statute of limitations. Id. at 704 (citations omitted). A continuing violation exists where "`(1) the allegedly discriminatory acts within and without the limitation period are sufficiently similar and frequent enough to constitute a single discriminatory practice chargeable to the employer; and (2) the circumstances are such that a plaintiff was not bound to have sued earlier.'" Findlay v. Reynolds metals Company, Inc., 82 F. Supp.2d 27, 37 (N.D.N.Y. 2000) (citing Brown v. Middaugh, 41 F. Supp.2d 172, 182 (N.D.N.Y. 1999)).
Plaintiff's evidence of a continuing violation consists of the denial of merit in 1986 followed by the denial of merit in 1988, and the denial of promotion to the Dean of Engineering position in 1989. Plaintiff has failed to establish a pattern of continuing discrimination against him. First, Plaintiff did receive equity raises in 1988 and 1989 totaling $2,500, a sum similar to that which he would have received in the two denials of merit raises. Thus, there was no on-going policy to deny Plaintiff raises based on his race or national origin, even during those first two cycles. Plaintiff also received a merit raise in 1990. Thus, during the "continuation" of the discrimination against Plaintiff, he received three salary increases. The acts complained of by Plaintiff after 1988 are of a significantly different quality. Simply put, the plaintiff cannot demonstrate a policy of denying him raises because he received three raises. Further, with the exception of one of the acts, all of the discrimination or retaliation complained of by Plaintiff occurred through the acts of Hollander, who was not Dean and not involved in the denials of merit raises in 1986 and 1988. It appears from the evidence submitted by the parties that Plaintiff's life at Union College changed significantly after Hollander was appointed Dean, but the conduct by Hollander cannot serve as a continuation of denials of raises that occurred long before he was appointed Dean.
Even with regard to the appointment for Dean of Engineering, no nexus exists. Different decision makers were involved and different types of acts were the result. Consequently, the Court finds that there is no continuing violation, and Plaintiff's claims based on the 1986 and 1988 denials of merit are dismissed as time barred.
Even were the Court to allow these claims to proceed as timely, they would be dismissed under the summary judgment analysis. Plaintiff's only statement regarding the denials of raises is the conclusory statement that the Faculty Review Board did not apply objective criteria in determining merit. Defendants have put forward numerous affidavits from individuals regarding the criteria applied in determining merit. There is also ample evidence in the record that race and national origin did not play a role in the denial of merit. To refute this evidence, Plaintiff is apparently pointing to the alleged statements of faculty members regarding the poor ratings given his research and patents. Plaintiff has alleged that these were the reasons given him for the denial of merit. Even assuming Plaintiff could put forward non-hearsay evidence of these statements, none of them gives any indication of a race or national origin bias. They may indicate ignorance on the part of the Faculty Review Boards regarding Plaintiff's field of research, but that is not sufficient for Plaintiff to meet his burden of coming forward with some evidence of a continuing trend of race or national origin discrimination.
C. Failure to Exhaust Administrative Remedies
Defendants next move to dismiss the claims based on discrimination for failure to exhaust administrative remedies. In particular, Defendants assert that Plaintiff included only one claim of discrimination in the 1989 and 1991 complaints to the Human Rights Department. Thus, Defendants argue that Plaintiff's other claims of discrimination must be dismissed.
A complainant may bring suit in federal court alleging all claims that were pursued in the EEOC filing as well as "any claim that is `reasonably related' to those asserted in the EEOC filing, even if that claim was not expressly addressed by EEOC." Cornwell, 23 F.3d at 706 (citations omitted). Thus, "`[a] district court has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge.'" Findlay, 82 F. Supp.2d at 32 (citing Butts v. City of New York Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). In order to be "reasonably related" to the EEOC complaint, the subsequent acts must fall into one of three categories. These categories are: 1) discriminatory conduct that was likely to have been investigated by the EEOC during its official investigation even though it was not specifically pled; 2) claims of retaliation for the filing of an EEOC complaint; and 3) allegations of further incidents of discrimination carried out in the same manner as those alleged in the EEOC complaint. See Findlay, 82 F. Supp.2d at 33-34.
Plaintiff's administrative complaints list the following activities of Defendants: discrimination in salary, denial of appointment to academic administrative positions, difficulty when Plaintiff was sitting as a member of the Faculty Review Board, accusations by Dean Hollander that Plaintiff was "upsetting the apple cart," and malicious comments by Hollander about Plaintiff's students. The parties have referred numerous times to the administrative investigation of the denial of machine shop work and Hollander's alleged comment that plaintiff was not a desirable minority. Further, the box alleging discrimination was also checked on the amended filing. Each of these claims was fully investigated by the administrative agency. Consequently, Defendants were on notice of all of the claims Plaintiff now makes. Defendants motion for summary judgment on the basis of a failure to exhaust administrative remedies is denied.
D. Retaliation Claim
Finally, Defendants move to dismiss the retaliation claim as unsupportable on the record. The elements of a claim for retaliation are (1) that the Plaintiff engaged in protected activity, (2) that he suffered an adverse employment decision or environment, and (3) that the adverse employment action was because of the protected activity, that is, a retaliatory motive existed. Fitzgerald, 251 F.3d at 358; Findlay, 82 F. Supp.2d at 40 (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998)).
Plaintiff puts forward evidence of two protected activities. First, he filed a discrimination complaint in 1983 and again in 1989 and second, that he testified in the federal discrimination suit involving another Asian American Professor at Union College who was not granted tenure in 1990. Thus, he has fulfilled the first prong of the test.
Plaintiff's evidence of adverse employment includes that he was denied the Electrical Engineering Chair in 1989, and consequently, the Watson Endowed Chair; that he was denied the position of Dean of Engineering in 1989; that Hollander told him he was not a desirable minority in 1990; that he was ridiculed and humiliated at faculty meetings by Dean Hollander in 1991; that he was falsely accused of abusing the machine shop and had his and his students work suspended by Hollander in 1991; and that he suffered from retaliation by the Faculty Review Board on which he served during the same time period. Thus, Plaintiff has put forward evidence of adverse employment decisions.
Viewing the record in its totality, the Court finds some evidence from which an inference of retaliation could be made by a trier of fact. Plaintiff appears to be able to show that prior to his filing the complaints and testifying in the federal trial, he was not subject to harassment by the Dean, or a lack of promotions. He has also put forward some evidence which, if believed by the trier of fact, would create the inference that the retaliatory acts escalated each time he opposed what he believed to be discrimination. In this regard, the Court notes that the chastising of Plaintiff at the faculty meetings, the comment about him not being a desirable minority, and the difficulties with the Faculty Review Board all occurred at or just after the time Plaintiff filed his 1989 and 1991 complaints. On a motion for summary judgment, the Court cannot weigh evidence or make credibility determinations. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, Defendants' motion for summary judgment on the retaliation claim is denied.
E. Discrimination
It is not clear to the Court if Plaintiff intended to allege a claim of discrimination apart from his retaliation claim. In the interest of justice, the Court will analyze the Plaintiff's proof to see if such a claim can be alleged.
In order to put forward a prima facie case of discrimination, the Plaintiff must show that he belongs to a protected class, that he suffered an adverse employment action, and that the action occurred "`in circumstances giving rise to an inference of racial discrimination.'" Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464 (2d Cir. 1989) (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987). Additionally, the Plaintiff must prove that he was qualified to hold the job. See Stern v. Trustees of Columbia University, 131 F.3d 305, 311-12 (2d Cir. 1997) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6 (1981)). The burden of proof that a plaintiff must meet at the prima facie stage in order to survive summary judgment is "minimal" or de minimis. St. Mary's Honor Ctr., 509 U.S. 502, 507 (1993); Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075 (1998). The Second Circuit has indicated that in determining whether a plaintiff has established a prima facie case, a court should consider only the plaintiff's evidence. Graham v. Long Island Rail Road, 230 F.2d 34, 42 (2d Cir. 2000). Nonetheless, a plaintiff must proffer some admissible evidence of each of the four elements, including evidence from which a reasonable trier of fact could infer discriminatory motive. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995).
Plaintiff is a member of a protected class, as he is a racial minority, and he has put forward evidence of two acts by the defendants which were adverse to his employment: he was denied the promotion to Dean and he was denied the Chair position. Further, there is no serious question that plaintiff was qualified to do both jobs, though there are issues of fact regarding whether he was the most qualified candidate.
In putting forward evidence of the causal link between the adverse employment acts and discrimination, Plaintiff proceeds on a theory of alternative motive. Thus, Plaintiff alleges that if the acts were not committed in retaliation for his filing the human rights complaint, then they were committed as acts of discrimination. Viewing Plaintiff's evidence as a whole, the Court can find no evidence of a discriminatory motive on the part of the college in not hiring Plaintiff as the Dean of Engineering. Plaintiff offers nothing to tie any racial animus against him to this decision. He makes the wholly conclusory allegation that it might have been because of race, but does not put forward any evidence to link the denial of the Dean of Engineering position to his race. Thus, Defendants are granted summary judgment on this claim.
With regard to the promotion to Chair of Engineering, Plaintiff has alleged that Dean Hollander was the individual responsible for making that decision. That is not denied by Defendants. Plaintiff further puts forward evidence of other acts by Hollander which were unfavorable to Plaintiff. Additionally, he offers the conversation in which Hollander referred to him as a "not a desirable minority." Although that comment alone would not be enough to sustain Plaintiff's burden, viewing the record as a whole and taking the various acts of Hollander as alleged by Plaintiff together, a rational trier of fact could find that Hollander was discriminating against Plaintiff, and thus, kept him from being promoted to the Chair position. Thus, Plaintiff has met his burden on this claim.
Where the Plaintiff has met his obligation, the burden shifts to the defendants to articulate some legitimate, non-discriminatory reason for the decision in order to rebut the presumption raised by the prima facie case. St. Mary's Honor Ctr., 509 U.S. at 507; see also Ternullo v. Reno, 8 F. Supp.2d 186, 190 (N.D.N.Y. 1998). Defendants put forward evidence that Plaintiff was not promoted to the chair position because he was difficult to get along with and had personality conflicts. Defendants have further asserted that the faculty were canvassed regarding the decision and that they voted not to have Plaintiff as the chair. Thus, Defendants have met their burden of coming forward with a legitimate non-discriminatory reason for not promoting Plaintiff.
Where a defendant is able to meet the obligation of production, the burden shifts back to the plaintiff who must put forward evidence that the reasons offered by the defendant for the adverse employment action are a mere pretext to cover discrimination. Ramseur, 865 F.2d at 464 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The ultimate burden of persuasion remains always with the plaintiff. St. Mary's Honor Ctr., 509 U.S. at 511. In determining whether the plaintiff can satisfy this ultimate burden, a court must examine the entire record and apply "a case-by-case approach." Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000).
In response to Defendants' proffer, Plaintiff puts forward his own affidavit that he was not consulted regarding the Chair position and that it was not the normal practice of the Dean to consult with the faculty regarding the Chair position. Plaintiff also reiterates that there is evidence that Hollander held a discriminatory animus toward the Plaintiff and that he was largely responsible for the ultimate decision. The Court finds that although Plaintiff has barely put forward any evidence of a discriminatory animus, there is some issue of fact surrounding the treatment of Plaintiff by Hollander and whether this was related to Hollander's contempt for Plaintiff as a particular minority. Thus, Defendants motion for summary judgment on the discrimination claim with regard to the Chair position is denied.
III. Conclusion
Defendants' motion for summary judgment on the 1986 and 1988 denial of merit claims is GRANTED. Defendants' motion for summary judgment on the discrimination claim as it relates to the failure to promote Plaintiff to the Dean of Engineering is GRANTED. In all other respects, Defendants' motion is DENIED.
IT IS SO ORDERED.