Faro v. New York University, 1216
| Decision Date | 23 August 1974 |
| Docket Number | No. 1216,D,1216 |
| Citation | 502 F.2d 1229 |
| Parties | 8 Fair Empl.Prac.Cas. 609, 8 Empl. Prac. Dec. P 9632 Maria Diaz FARO, Plaintiff-Appellant, v. NEW YORK UNIVERSITY, Defendant-Appellee. ocket 74-1041. |
| Court | U.S. Court of Appeals — Second Circuit |
Nancy E. Stanley, New York City (Bellamy Blank Goodman Kelly Ross & Stanley, New York City and Diane Serifin Blank, New York City, on the brief), for plaintiff-appellant.
William C. Porth, New York City (Katherine B. Desai, New York City, of counsel), for defendant-appellee.
Carol Lynn Green, Washington, D.C., for the United States Equal Employment Opportunity Commission as amicus curiae.
Before MOORE and FEINBERG, Circuit Judges, and PALMIERI, * district judge.
Plaintiff, Maria Diaz Faro, a doctor of philosophy, Ph.D. in anatomy, not a medical doctor (referred to herein as Dr. Faro), appeals from an order of the District Court denying her application for a preliminary injunction in an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., wherein she sought an injunction against defendant from allegedly changing her employment status in the New York University Medical Center (for brevity usually referred to as 'NYU'), pending action by governmental agencies with which she had filed complaints alleging discrimination against her because she is a woman.
After a three-day hearing, the court (Duffy, J.) denied the preliminary injunction, concluding that it was 'thoroughly unconvinced that the defendant University was motivated by sex bias or discrimination in refusing to create a special position for plaintiff and to give that job to her.' and, since 'the plaintiff has failed to show either irreparable harm or the likelihood of success on the merits,' that no injunction should issue.
To appraise the merits of Dr. Faro's claim, the facts relating to her coming to NYU and her position and work there since that time should be reviewed.
Dr. Faro came to NYU in early 1965 from Puerto Rico as one of some fourteen members of a research staff of the Laboratory of Perinatal Physiology, a group brought to NYU by Dr. William F. Windle and which was engaged in primate studies. She was given the status of a research scientist as an Instructor of Experimental Rehabilitation Medicine. Her compensation was from special funds. In 1968 her grade was changed to Assistant Professor and in September 1972 to Associate Professor.
The Department of Rehabilitation Medicine of NYU is frequently referred to as the Rusk Institute because of its founder and chairman, Dr. Howard A. Rusk. 1 The grant under which Dr. Windle and his staff were conducting their research was not a grant in perpetuity. Dr. Windle advised his staff that his grant would terminate in February 1971 and that he was departing about that time. Apparently, all other members of the research group except two women, Dr. Faro and Dr. Barker, left. To aid Dr. Faro in continuing her research, NYU arranged to have her participate in teaching a course in Gross Anatomy in the Department of Cell Biology on a temporary basis in the Spring of 1971 and again from September 1971 to February 1972. 2 In addition, Dr. Rusk was able to secure some funds from private foundations to support Dr. Faro's research activities for a further limited period.
In the summer of 1971, Dr. Rusk wrote to eleven employees of his Department including Dr. Faro, terminating their appointments as of August 31, 1972, and offering new appointments without tenure possibilities but with continuation of current salary and fringe benefits. All except Dr. Faro accepted. Dr. Faro chose to regard this as a 'demotion' and requested consideration for a tenured position which she was subsequently advised NYU's financial and academic situation precluded. NYU's financial condition (large deficits having been incurred) forced it to terminate Dr. Faro's employment as of December 31, 1973. Dr. Faro sought other academic employment but without success. She decided to attempt to remedy this situation by filing alleged employment discrimination charges with the U.S. Equal Employment Opportunity Commission and the New York City Commission on Human Rights. Because of the anticipated delays before these Commissions, Dr. Faro brought this suit and moved for a preliminary injunction. Primarily her claim is, and of necessity must be, that the action taken by NYU in her case was of a discriminatory nature because she is a woman.
The district court did not dispose of the motion on the affidavits alone but granted a protracted hearing (three days) in which Dr. Faro and Drs. Sabatini (Chairman of the Cell Biology Department), Rusk (Director of the Institute of Rehabilitation Medicine and Chairman of the Department of Rehabilitation Medicine), Potter (Associate Dean of the Medical Schools) and Goodgold (Professor of Rehabilitation Medicine and Director of Research and Training in the Institute of Rehabilitation Medicine); all testified. The court's conclusion that there was no discrimination against Dr. Faro is amply supported by the proof-- in fact, it is the only conclusion which could be properly adduced therefrom. In argument, Dr. Faro points to the hiring of other medical professors who are male but the proof shows no professional comparison between these professors, their experience, skills and purposes for which they were hired, and Dr. Faro.
Dr. Faro also argues that the district court applied a too stringent standard of proof in denying the preliminary injunction; that the court was in error in stating that she must show a strong likelihood of ultimate success on the merits; that she has shown irreparable injury; and that the issues here, legal and factual, are complex.
Dr. Faro, in effect,...
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