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April 14, 1983

CITY UNIVERSITY OF NEW YORK, COLLEGE OF STATEN ISLAND, EDMUND VOLPE, President of the College of Staten Island, individually and in his official capacity, and REUBEN BENUMOF, former Chairman of the Department of Physics, Geology and Astronomy at the College of Staten Island, individually, Defendants

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 Plaintiff, Ashfaq Kureshy, Ph.D., a dark-skinned Muslim from India, alleges in this action that defendants discriminated against him in their employment practices based upon his race, color, national origin, and religion, in violation of 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. §§ 1981 & 1983. *fn1" Plaintiff had been employed as an Associate Professor of Geology at Staten Island Community College ("SICC") from September 1972 until August 1977. He complains, however, that several of defendants' decisions and actions affecting his employment resulted from impermissible discrimination.

 He alleges, first, that SICC should have hired him for any of three positions that were available prior to the vacancy he filled and, second, that when he was hired he should have been compensated at a salary above the entry level rate. Next, he contests SICC's repeated rejections of his applications for promotion to full professor, and its denial of his application for early tenure. Further, he claims that he should have been financially reimbursed for the semester that he taught an increased course load. Finally, he challenges the denial of his application for statutory tenure and the resultant termination of his employment.

 Findings of Fact

 Hiring and Salary

 Dr. Kureshy's relationship with SICC commenced with an advertisement placed by the College in the February 1971 issue of GeoTimes (a professional journal) seeking a geology professor for the fall semester. Dr. Kureshy, then residing in Calgary, Canada, inquired about this position in a letter dated April 8, 1971. On March 25, however, Dr. Reuben Benumof, then Chairman of the SICC Department of Physics, Geology, and Astronomy ("Geology Department") and now a defendant, had already offered an appointment as an associate professor of Geology to Ernest Kaarsberg, Ph.D., who accepted the position before the end of the month.

 SICC was a unit of the City University of New York ("CUNY"), which is governed by the New York City Board of Higher Education ("BHE"). Funds had been made available to CUNY for a limited period of time to enable CUNY to recruit attractive professorial candidates to fill what were called "Bowker-line" appointments. It was one of these positions that was offered to Dr. Kaarsberg and which he accepted at a starting salary of $18,760 to commence in September 1971, with an increase to $19,830 on October 1, 1971.

 SICC never responded to Dr. Kureshy's initial inquiry, nor did he receive a reply to his subsequent letter from Calgary dated May 31, 1971. Dr. Almeleh, who was then handling recruitment for the Geology Department, testified that his records included a handwritten notation that a response had been sent on June 10, 1971.

 On July 26, 1971, a second position in the Geology Department unexpectedly became available. Needing a professor who could be ready for fall classes, the College conducted an abbreviated search and hired Anderson Ohan, who had been previously employed as an adjunct assistant professor. The College did not contact the potential candidates whose applications it had on file, and therefore did not consider Dr. Kureshy for this vacancy. Ohan's position was not a "Bowker-line" position, and he entered at the rank of assistant professor and was compensated at the entry level salary for that rank.

 In January 1972, another vacancy arose suddenly in the Geology Department, and again the College filled the position without searching its files. G. Gordon Connally, Ph.D., was hired as an assistant professor at entry level salary to commence teaching in February 1972. The College indicated that the position was available for one semester only.

 Dr. Kureshy, who had moved to New York City in September 1971, next contacted SICC by letter dated March 6, 1972, mailed from a Manhattan address. By return letter dated March 21, 1972, Dr. Benumof replied that no vacancy existed but that Dr. Kureshy's application would be kept on file.

 On August 18, 1972, Dr. Connally resigned. Finding that it still needed an additional Geology professor, SICC contacted the applicants it had on file. In a letter dated August 21, 1972, SICC invited Dr. Kureshy to interview on September 6, 1972, at 4 p.m. Although Dr. Kureshy believes that the relatives with whom he had resided in Manhattan would have forwarded this letter, he testified that it never reached him at his new Bronx address. Instead, Dr. Kureshy responded to an advertisement for the position which appeared in the New York Times. He was given the same interview time, and was ultimately selected for the position over several other qualified candidates. His employment as an associate professor, compensated at the entry level salary of $17,830, was thus effective as of September 1, 1972.

 Failure to Promote

 Dr. Kureshy first applied for promotion to full professor in the spring of 1973. Requests for promotion from associate to full professor at SICC were made initially to a subcommittee of the College Personnel and Budget Committee ("P & B") and then to the full P & B Committee. The Chairmen of the College's sixteen departments and the Dean of Faculty sat as voting members of this Committee, and the Dean of Students and the College President were nonvoting members. A positive P & B decision would next be reviewed by the President, and ultimately by the BHE.

 The standard for promotion from associate to full professor stated:

"The candidate must possess the qualifications for an associate professor, and in addition a record of exceptional intellectual, educational, or artistic achievement. There shall be evidence of his continued growth. Longevity and seniority alone shall not be sufficient for promotion." Exhibit D-27.

 During Dr. Kureshy's period of employment, ten associate professors were promoted to full professor. All ten were white, all had been hired prior to Dr. Kureshy, and all were tenured as associate professors prior to being promoted.

 Dr. Kureshy was not promoted, but he was reappointed for another year as an associate professor, with "reservation as to clarity of speech." He applied again for promotion in the spring semesters of 1974, 1975, and 1976, and although he was reappointed in 1974 and 1975, he was never promoted. Each of Dr. Kureshy's annual promotion applications was denied because it failed to receive a positive recommendation from the P & B subcommittee.

 Denial of Early Tenure

 By statute, a CUNY faculty member became tenured automatically when reappointed for a sixth year. N.Y. Educ. Law § 6206-b. Under § 6.2 of the BHE By-Laws, the College could in its discretion award tenure at an earlier date. That by-law, in effect during Dr. Kureshy's employment, did not specify the criteria upon which an early tenure decision should be made, except to require "not less than one nor more than five years of continuous satisfactory service on an annual salary basis." Dr. Benumof testified, however, that custom and practice at SICC dictated that early tenure be awarded only in exceptional circumstances.

 Consideration for early tenure was initiated at a candidate's request. The matter was reviewed first by his department's Appointments Committee, and then by the College P & B Committee, the President, and the BHE. A favorable recommendation was usually required at each step to proceed to the next. The Geology Department Appointments Committee took no action on Dr. Kureshy's request, and the matter went no further.

 While Dr. Kureshy was employed by SICC, only three candidates were considered by the College P & B for early tenure. Two failed to receive a favorable recommendation from the P & B Committee, and no motion was made in the committee to act on a third candidate who had been favorably recommended by the Geology Department Appointments Committee, effectively ending that application.

 Of the two candidates the P & B Committee decided not to recommend, one, Bruce Chandler, Ph.D., had been a tenured associate professor at another university when SICC recruited him. When Chandler was hired as a full professor, he was promised that the Mathematics Department would recommend him for early tenure after two years of satisfactory service. Then-SICC President Dr. William Birenbaum overrode the College P & B's negative recommendation, and Dr. Chandler did receive early tenure. No other faculty member was awarded early tenure during Dr. Kureshy's period of employment at SICC.

 Compensation for Additional Teaching Hours

 In the fall of 1975, the regular teaching load was increased from twelve to fifteen hours a week. In the fall of 1976, however, Dr. Kureshy was assigned a total of eighteen hours. The added three hours consisted of a graduate level course in Earth Science offered at Richmond College, another CUNY unit. Dr. Kureshy was not paid for his increased classroom duties. His spring 1977 course load, however, was reduced to twelve hours to compensate for the fall overload. A memo from Dr. Benumof to Dean Roslyn Attinson dated September 10, 1976, indicates that monetary compensation was not among the three options Dr. Benumof considered.

 Dr. Kureshy testified that he believed he would be paid for the additional teaching hours, as he believed SICC's practice to be. Prior to the Fall 1974 semester, SICC had various methods of compensating a professor who taught extra course hours, including additional pay or an offset in teaching hours in a subsequent semester. Increased budget constraints, however, caused the College to institute a policy of seeking alternatives other than financial compensation. Three professors had been compensated for teaching extra course hours in the Spring 1974 semester. With only one exception, however, from September 1974 through January 1978, no additional pay was given for extra course hours.

 In the exceptional case, SICC paid Professor Ohan for his extra six-credit field course in the geology of New York City offered in the Spring 1977 semester. Professor Ohan carried a twenty-one credit course load that semester, and SICC concluded that this burden could not reasonably be handled by a reduction to nine credits the following semester.


 As previously noted, reappointment for a sixth year conferred tenure. Thus in 1976, Dr. Kureshy was automatically considered as a candidate for statutory tenure.

 A tenure candidate sets the review process in motion by submitting his curriculum vitae to his Department Appointments Committee. After its review, that committee forwards the candidate's file and its own recommendation to the College P & B Committee. The P & B Committee holds a preliminary vote, engages in extensive discussions, and then conducts a final vote. If the P & B Committee votes to recommend a refusal of tenure, the candidate may appeal to an Appeals Committee, which was then comprised of three members elected by the faculty and three members appointed by the President. A recommendation to grant tenure by the P & B Committee or the outcome of the Appeals Committee process is next reviewed by the College President. The College President's decision must be accepted by the BHE for tenure to be awarded.

 After consulting with Dr. Benumof, Dr. Kureshy submitted his curriculum vitae to the Appointments Committee for the Department of Physics, Geology and Astronomy, and was unanimously recommended for tenure. The preliminary vote in the P & B Committee, however, was against Dr. Kureshy, with four votes favoring tenure, ten against, and three abstentions. Nine positive votes were required to recommend tenure. Dr. Kureshy supplemented his curriculum vitae and, after lengthy debate, the P & B Committee recommended tenure by a one-vote margin.

 In 1976 and 1977, SICC first federated and ultimately merged with Richmond College, forming the College of Staten Island ("CSI"), a named defendant. Edmund Volpe, Ph.D., also a defendant, had been President of Richmond College for two years and became President of the federated CSI in September 1976. Dr. Volpe, new to the SICC faculty, ultimately reviewed Dr. Kureshy's tenure application.

 Based upon the contents of Dr. Kureshy's personnel file and a brief personal interview, Dr. Volpe decided to recommend that Dr. Kureshy be denied tenure. Dr. Kureshy was notified of Dr. Volpe's decision by letter dated October 28, 1976. Responding to a subsequent inquiry made by Dr. Kureshy, Dr. Volpe wrote that Dr. Kureshy's "overall teaching effectiveness is not of a quality to merit reappointment with tenure." Exhibit C-22. At trial, Dr. Volpe testified in detail concerning his decision.

 Tenure decisions were to be made upon consideration of certain criteria articulated in the BHE By-Laws and an SICC policy memo. The ...

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