Stern v. Trustees of Columbia University in City of New York

• Decision Date: 12 December 1997
• Docket Number: No. 1626,D,1626
• Citation: 131 F.3d 305
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 1423, 72 Empl. Prac. Dec. P 45,082, 123 Ed. Law Rep. 1051 Irwin STERN, Plaintiff-Appellant, v. TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Defendant-Appellee. ocket 95-9137.
• Court: U.S. Court of Appeals — Second Circuit

Page 305

131 F.3d 305

75 Fair Empl.Prac.Cas. (BNA) 1423,

72 Empl. Prac. Dec. P 45,082, 123 Ed. Law Rep. 1051

Irwin STERN, Plaintiff-Appellant, v. TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK Defendant-Appellee.

No. 1626, Docket 95-9137.

United States Court of Appeals Second Circuit.

Argued May 24, 1996.

Decided Dec. 12, 1997.

Roy Karlin, New York City (Shapiro, Beilly, Rosenberg, Albert & Fox, New York City, on the brief), for Plaintiff-Appellant.

Mark L. Goldstein, New York City (Andrea H. Stempel, Goldstein & Morris, New York City, on the brief), for Defendant-Appellee.

Before: WINTER, Chief Judge, KEARSE and CALABRESI, Circuit Judges.

Judge Calabresi dissents, in a separate opinion.

KEARSE, Circuit Judge:

Plaintiff Irwin Stern appeals from a final judgment entered in the United States District Court for the Southern District of New York, Harold Baer, Jr., Judge, dismissing his complaint alleging that defendant Trustees of Columbia University ("Columbia" or the "University") denied him a requested position because of his national origin, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (1994). The district court granted the University's motion for summary judgment dismissing the complaint on the ground that, though Stern had presented sufficient evidence to establish a prima facie case, the court would not second-guess the nondiscriminatory reason proffered by the University for its selection of another candidate. On appeal, Stern contends that summary judgment was improper because there were genuine issues of fact to be tried. For the reasons that follow, we agree, and we therefore vacate the judgment and remand for further proceedings.

I. BACKGROUND

The present controversy centers on the position of Director of the Spanish Language Program ("Language Program" or "Program") in the University's Department of Spanish and Portuguese (the "Department"). Through the Program, the Department principally provided instruction in the Spanish language to some 750 undergraduate and graduate students in approximately 45 sections of 12 elementary and intermediate courses each semester, taught by approximately 25 teaching assistants.

Stern, a white American male of Eastern European origin, was acting director of the Program in 1991-1993. In 1992, when it was decided that a full-time director should be Preliminarily, we note that this appeal has arrived in this Court with the entire record sealed. We see no basis for the sealing of an entire record such as this, particularly in the context of a motion for summary judgment that was granted. See Joy v. North, 692 F.2d 880, 893 (2d Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1498, 75 L.Ed.2d 930 (1983). In response to an inquiry at oral argument, the University sent this Court a letter specifying certain documents that it deemed confidential and wished to remain sealed. Accordingly, with the exception of the documents specified in that letter, the record is hereby unsealed. The University may move in the district court for a determination of which, if any, of the documents specified in its letter should remain sealed. That determination should be made in accordance with the test set out in United States v. Amodeo, 71 F.3d 1044 (2d Cir.1995).

appointed for the academic year beginning in 1993, Stern applied for the position. The University, which had adopted an affirmative action plan pursuant to which it sought out qualified women and minority candidates, appointed as director Augustus Puleo, an American male of Hispanic descent. Stern contends that despite his own extremely strong credentials and recommendations, he was never afforded a genuine opportunity to compete with candidates from the University's preferred groups.

Taken in the light most favorable to Stern, as the party opposing summary judgment, the record includes the following.

A. Stern's Qualifications

Stern received his Ph.D. from the City University of New York in 1972 and was hired by Columbia in 1978 for a part-time position in the Department. In that position, he taught Spanish and Portuguese, helped to develop the Spanish Program for medical students at the University's College of Physicians and Surgeons, and ran the Department's summer language program. For this work, Stern received high praise for both his teaching and his administrative abilities. In 1989, Stern was named director of the University's College of Physicians and Surgeons Spanish Program.

By 1992, Stern had some 25 years' experience in teaching college-level courses in Spanish and Portuguese language and literature. He had served on the editorial boards of several professional journals, had edited more than 40 college-level textbooks on Spanish language and literature, and had published his own Spanish and Portuguese grammar textbooks and scholarly works.

B. The University's Affirmative Action Plan

Throughout the relevant period, it was the University's policy that faculty was to be hired without regard to invidious factors such as race, color, religion, age, or national origin. The University had an affirmative action plan (the "Plan"), applicable to all of its schools and departments (collectively "departments"), which required that all academic appointments to full-time positions be made after "a wide search for candidates, with special efforts made to locate women and minority group candidates[,] and ... a fair, impartial review and judgment of all applications." (1992 Affirmative Action Plan at 7.) Once promising female and minority candidates were identified, however, all applicants were to be evaluated by the same standards. (See Affidavit of Martin Meisel, former University Vice President, dated August 21, 1995, p 24 ("The Plan does not ... permit ... the use of different or lower standards in judging minority and female candidates. Instead, it urges that special efforts be taken to identify promising minority and female candidates. Once they are identified, however, they are judged by the same rigorous standards applied to white males.").)

The Plan also recognized that "the process of faculty recruitment and development inherently involves the application of judgmental criteria, and that the responsibility for applying these criteria must rest primarily with the faculties themselves." (1992 Affirmative Action Plan at 6.) The Plan required each department to establish its own search and evaluation procedures consistent with the University's policies and goals. The Department of Spanish and Portuguese had established such procedures, which required its

Executive Committee, comprising all tenured faculty members in the Department, initially to define the position available and vote on whether to initiate a search for a full-time nontenured faculty member. Once an affirmative vote was taken, the Department's Chair would draft an advertisement to be submitted to the University's Vice President for Arts and Sciences for approval. All applications submitted in response to the advertisement would then be read by the Department's search committee, with the most promising applications being reviewed by the Executive Committee and non-Department persons such as adjunct faculty members and members of the Spanish Department at Barnard College ("Barnard"). The strongest candidates would then be invited to interview with the faculty and, on occasion, to present a talk at the University to Department faculty, graduate students, or others. The final decision as to each candidate was to be made by the Department's Executive Committee, with input from a representative from Barnard.

C. The Directorship of the Spanish Language Program

In mid-1991, the then-Director of the Spanish Language Program, David Barnwell, resigned. Barnwell recommended that Stern be his successor; the Department's faculty unanimously concurred. The University's affirmative action plan permitted a department to fill a position following a limited search, or no search, in certain circumstances, such as when a position was left open due to an unforeseen occurrence. In those circumstances, the Plan required the department to seek from the University's Provost a waiver of the Plan's affirmative-action search requirements. In the wake of Barnwell's unanticipated resignation, the Department's Chair recommended to the Provost that Stern be appointed to replace Barnwell on an interim, part-time basis for the 1991-1992 academic year.

The Provost granted the Department emergency affirmative-action clearance for Stern's appointment; he notified Martin Meisel, the University's then-Vice President for Arts and Sciences, that Stern "should be informed that the appointment is interim and not considered renewable without a complete search in accordance with the University's Affirmative Action Program." (Letter from Provost Jonathan R. Cole to Meisel, dated May 2, 1991, at 1.) In June 1992, the Department received permission to reappoint Stern for a second year on the same basis.

On October 1, 1992, after it was decided that the Program should have a full-time director, Felix Martinez-Bonati, the Department's Chair, wrote to Meisel, requesting authorization to announce the position, conduct the normal search, and select the best candidate. The University, however, had identified the Spanish Department as one of three departments in the Humanities that were to be "targets for selective recruiting" of minority faculty. (Recruiting Tomorrow's Faculty: Minorities in the Arts and Sciences and the Graduate School at 2.) Further, it considered "direct intervention" by Meisel, in the form of communications to department chairpersons and participation in negotiations with prospective faculty, to be the "most effective way" of increasing the number of senior female faculty members. (Office of Equal Opportunity and Affirmative Action, Annual Review and Evaluation, dated September 1990, at 6.) Therefore, instead...