767 F.Supp. 494 (S.D.N.Y. 1991), 90 Civ. 0061, Silver v. City University of New York

Docket Nº:90 Civ. 0061 (KTD).
Citation:767 F.Supp. 494
Party Name:Morris SILVER, Plaintiff, v. The CITY UNIVERSITY OF NEW YORK, The Board of Trustees of the City University of New York, Bernard W. Harleston, Joseph S. Murphy and James P. Murphy, Defendants.
Case Date:April 22, 1991
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 494

767 F.Supp. 494 (S.D.N.Y. 1991)

Morris SILVER, Plaintiff,


The CITY UNIVERSITY OF NEW YORK, The Board of Trustees of the City University of New York, Bernard W. Harleston, Joseph S. Murphy and James P. Murphy, Defendants.

No. 90 Civ. 0061 (KTD).

United States District Court, S.D. New York.

April 22, 1991

Page 495

Morris Silver, pro se.

Robert Abrams, Atty. Gen., State of N.Y. (Clement J. Colucci, Asst. Atty. Gen., of counsel), New York City, for defendants.



Plaintiff Morris Silver is a Professor of Economics. He brings this employment discrimination action against defendants the City University of New York ("CUNY"), its Board of Trustees, Bernard W. Harleston, Joseph S. Murphy and James P. Murphy, claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1983. The parties cross-move pursuant to Fed.R.Civ.P. 56(c) for summary judgment.


Silver has taught at the City College of the CUNY system 1 since 1961 and has served as chair of the Economics Department since 1969. Silver's Deposition ("Depo.") at 7. Published widely, Silver has concentrated his academic efforts in the area of historical economics. Silver Depo. at 6-7.

CUNY recognizes, and chooses academicians for, a certain honor known as a Distinguished Professorship. 2 As delineated in the City University By-Laws, a Distinguished Professorship is reserved for a small number of truly extraordinary scholars. The applicant must be a Full Professor and "a person of outstanding merit and accomplishment in his/her field." The honor carries a stipend of $20,000 above the normal salary and this distinction is reserved for no more than 125 of the approximately 2,300 full professors on CUNY's faculty. Bloom Affid. pp 4, 5. Sometime in early 1987, Silver mentioned to members of the Economics Department's Executive Committee that he was interested in being considered for a Distinguished Professorship. Silver Depo. at 8-9. He submitted a statement expressing his interest and outlining his recent work. Silver Depo. at 8-9.

Page 496

Contemporaneously, CUNY began efforts to create an affirmative action policy in connection with and applicable to the selection of distinguished professors. Originating as a recommendation of the Committee on Academic Affairs to the University Council of Presidents, the policy was memorialized in the Committee's report, dated January 26, 1987. It suggested that future groups of candidates for the honor of Distinguished Professor "should include a very significant representation of minorities and females." Bloom Affidavit, Exh. C. The report further stated that out of the more than 25 vacant distinguished professor positions "no more than 5 may be inside appointments, except in very unusual circumstances." Exh. C, ¶ 8.

Subsequently, a memorandum regarding appointments for the distinction of Distinguished Professor was sent by the Acting Vice Chancellor for Academic Affairs to all college Presidents in the CUNY system on March 26, 1987. Because affirmative action was and is of the highest importance to CUNY schools, the memorandum stated that the group of nominees to be presented to the Board of Trustees is expected to include a very significant representation of minorities and females. City College President Bernard W. Harleston also sent a memorandum announcing CUNY's affirmative action policies to the City College Provost Charlene McDermott, on that same date. However, Silver professes that he had not then nor previously been aware of this affirmative action policy.

Nonetheless, after reviewing Silver's work and the opinions of scholars outside the City University, the Executive Committee unanimously recommended Silver's appointment as a Distinguished Professor on April 2, 1987. Silver Depo. at 9; Plaintiff's Memo at 4. Silver as well as other candidates were then considered by the Division of Social Sciences Personnel and Budget Committee. Silver Depo. at 10. That committee, composed of the chairs of all departments in the Division of Social Sciences, recommended the appointment of both Silver and Eleanor Leacock, a Professor of Anthropology. Silver Depo. at 9-10.

The next step was the City College Review Committee, which consists of all College Deans, the Chair of the Faculty Senate, and the Provost. Harleston Affid. ¶ 6. No recommendation was made on Silver's behalf at this stage, but assertedly, the committee did recommend the posthumous appointment of Professor Leacock, who had died before the Review Committee's vote. Silver Depo. at 10.

After Silver's nomination was rejected, he wrote a letter to Harleston, the College's president, informing him of a pending appeal. Harleston replied that Silver's appeal would be considered by the Faculty Committee on Personnel Matters. Silver Depo. at 10-11. On September 16, 1987, that Committee recommended that Harleston support Silver's recommendation as a Distinguished Professor. Harleston Affid. ¶ 7. Harleston, however, refused to forward Silver's nomination to the Chancellor, stating that the decision reflected his best...

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