Tolbert v. Queens College
| Decision Date | 15 January 1999 |
| Docket Number | Docket No. 98-7272 |
| Citation | 164 F.3d 132 |
| Parties | 74 Empl. Prac. Dec. P 45,733, 75 Empl. Prac. Dec. P 45,733, 131 Ed. Law Rep. 643 Derek I. TOLBERT, Plaintiff-Appellee, v. QUEENS COLLEGE, The City University of New York, Professor Stuart Liebman, Professor Helen Smith Cairns, and Professor Eric Gander, Defendants, Queens College, The City University of New York, Professor Stuart Liebman, Professor Helen Smith Cairns, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Frederick K. Brewington, Hempstead, NY (Adrienne Brewington, Hempstead, NY, on the brief), for Plaintiff-Appellee.
Marion R. Buchbinder, Asst. Atty. Gen., New York City (Dennis C. Vacco, Atty. Gen. of State of New York, John W. McConnell, Deputy Solicitor General, Robert A. Forte, Asst. Atty Gen., New York City, on the brief), for Defendants-Appellants.
Before: KEARSE and POOLER, Circuit Judges, and POLLACK, District Judge. * .
Judge POLLACK dissents in a separate opinion.
Defendants Stuart Liebman and Helen Smith Cairns (collectively "appellants"), et al., appeal from an order of the United States District Court for the Eastern District of New York, Reena Raggi, Judge, denying their motion, based on their assertion of qualified immunity, for summary judgment dismissing the complaint of plaintiff Derek Tolbert brought principally under 42 U.S.C. § 1983 (1994) and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1994), alleging that appellants discriminated against him on the basis of race. The district court denied the motion on the ground that the qualified immunity defense could not be decided without the resolution of material issues of fact as to the conduct in which appellants had engaged. On appeal, appellants argue that they were entitled to summary judgment on the ground that the undisputed facts show that they did not engage in the allegedly unconstitutional conduct and that it was objectively reasonable for them to believe that their conduct did not violate clearly established constitutional rights. For the reasons that follow, we dismiss the appeal for lack of appellate jurisdiction.
Tolbert is a black citizen who since 1985 has been employed as a teacher in the New York City school system. In 1989, in order to maintain his teaching eligibility and to qualify for certain promotions, he enrolled in the Media Studies program ("Media Studies") offered by the Queens College Department of Communications Arts and Sciences (the "Department"), seeking a Master's degree in communications. In June 1993, having completed his course work with a satisfactory grade-point average, he sat for the comprehensive examination that was a prerequisite for that degree. He was given a failing grade and was therefore denied the degree. Liebman was a professor who gave Tolbert a failing grade on the examination.
After learning that he had failed the examination, Tolbert sought an explanation, and Cairns, Chairperson of the Department, convened a meeting in October 1993, attended by, inter alios, Tolbert, Cairns, and Liebman. Also attending were Binnie Meltzer, who was a teaching colleague of Tolbert's, and Diane Peritz, an Adjunct Lecturer in the Department who took notes. The precise statements made at that meeting are in dispute. Tolbert asserts that he was informed that there were no objective criteria for the grading of the comprehensive examinations, and that Liebman stated that Chinese students and others for whom English is a second language ("ESL students") were graded on a basis different from the basis on which Tolbert was graded. The meeting notes taken by Peritz include the following statement attributed to Liebman:
The meeting did not result in any change in Tolbert's grade. Tolbert was informed that, in accordance with Department policy, he would be allowed to take the comprehensive examination a second time. He elected not to do so, and he did not receive a Masters degree in communications. He went on to earn a Masters degree in English. In 1994, he brought the present suit against Liebman, Cairns, and others, alleging racial discrimination in the grading of his examination.
To the extent pertinent to this appeal, Liebman and Cairns moved for summary judgment dismissing the complaint against them in their individual capacities on the grounds that they did not meaningfully distinguish between ESL students and others and that it was objectively reasonable for them to believe that their conduct did not violate clearly established constitutional rights. They contended, inter alia, that all examinations were made anonymous before being graded ("blind grading"), so that the professors grading a given examination had no information as to which candidate had written the examination. In support of the motion, Liebman submitted an affidavit stating that because Tolbert had not been a student in any of his classes, Liebman had no familiarity with Tolbert or Tolbert's handwriting before grading the examinations; hence Liebman did not know he was grading the examination written by Tolbert and could not have intentionally discriminated against Tolbert. Liebman stated further that Tolbert misconstrued the statements Liebman made about Chinese ESL students at the October 1993 meeting:
[T]here is no merit to plaintiff's allegations that "Chinese students" and unidentified "others" ... received preferential treatment in connection with the evaluation of their essays. It is my understanding that plaintiff bases this allegation on his totally incorrect interpretation of notes that were taken during the meeting held on October 6, 1993.
16. Those notes, which do not represent a verbatim account of the October 6, 1993 meeting, were taken by Ms. Diane Peritz, an adjunct Lecturer in the Department of Communications Arts and Sciences, and contain an isolated reference to "Chinese ESL Students."
17. Any reference that I made to "Chinese ESL Students" was in an effort to explain to plaintiff that foreign speaking students, such as Chinese students, are permitted to bring language dictionaries to the comprehensive examination. However, Chinese students, like any other students in the Media Studies program, were not afforded any special accommodation or latitude with respect to the grading of their comprehensive examination.
(Affidavit of Stuart Liebman dated June 16, 1997, pp 15-17.) Cairns submitted an affidavit stating that she did not precisely recall Liebman's statements at the October 1993 meeting, but that Tolbert misconstrued them. She also expressed the view that a certain amount of preferential treatment for Chinese ESL students was appropriate:
9. In the complaint, plaintiff alleges that Professor Liebman advised him that Chinese students and unidentified "others" were graded on a "different basis" than he was which resulted in the application of discriminatory grading standards in an evaluation of his comprehensive examination.... It is my understanding that plaintiff bases this allegation on the notes of the October 6, 1993 meeting which were taken by Adjunct Lecturer Peritz. More specifically plaintiff focuses on a reference Professor Liebman may have made regarding "Chinese students" or other non-native speaking students, where English is their second language. ("ESL Students").
10. Notwithstanding the fact that I have no specific recollection of any comments made concerning Chinese or ESL students, it would be entirely appropriate not to penalize such students merely because their essay responses may have contained grammatical flaws. As I testified earlier in my deposition, it is often very difficult for ESL students to remember to always include the appropriate articles in their writing.... In evaluating the essays of the comprehensive examinations, the faculty graders focus on content, organization and argumentation and minimize the importance placed on grammatical errors.
11. Indeed, it is for that very reason that ESL students are permitted to bring a dictionary to the comprehensive examination.
12. Any random comment that Professor Liebman may have made concerning ESL students' lack of mastery of the English language has been totally misconstrued by plaintiff and does not substantiate plaintiff's allegation that he was subjected to a discriminatory grading system.
(Affidavit of Helen Smith Cairns dated June 11, 1997, pp 9-12.)
In opposition to the summary judgment motion, Tolbert submitted a statement of material facts that he contended were in dispute ("Local Rule 56.1 Statement"), in which he, inter alia, questioned the assertion that Liebman could not identify Tolbert's examination due to the blind-grading procedure. Tolbert stated that "considering the small number of people taking the exam," Liebman might well have been able to distinguish Tolbert from students whom Liebman had taught (Tolbert's Local Rule 56.1 Statement p 18); he argued that, given the evident recognizability of the examinations written by Chinese ESL students, Liebman could have known, by process of elimination, which examination had been written by Tolbert.
Tolbert submitted a declaration in which he disputed appellants' description of the October 6, 1993 meeting:
11. The defendants ... contended that a lack of clarity in my writing was a significant factor in my failing the Masters Examination. In response to this comment, I opined that I write better than some of the Chinese ESL students in the class who passed the exam. This statement stemmed from my observations of the Chinese students in my class, many of whom appeared to have trouble expressing themselves and communicating clearly in [E]nglish.
12. When I asked Professor Liebman how my writing could have warranted a failing grade when compared to the Chinese ESL students in the class,...
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