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,
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
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
academic judgment. Harleston Affid. ¶ 8 and Exh. C.
Subsequently, Silver filed a grievance pursuant to CUNY's
collective bargaining agreement with the Professional Staff
Congress, the union representing CUNY faculty. A grievance
hearing was then conducted. Silver Depo. at 17-18.
On May 6, 1987, McDermott distributed copies of the March
26th memorandum, outlining CUNY's affirmative action policy, at
the City College Review Committee meeting. Harleston ¶ 16.
Silver was notified by letter dated May 14, 1987, that his name
had not been forwarded for an award of Distinguished Professor
by the Review Committee. Harleston Affid., Exh. A.
Additionally, Silver's grievance proceedings proved
unsuccessful. Silver Depo. at 24-28. Silver then pursued a
claim before the Equal Employment Opportunity Commission
("EEOC"), which ultimately found no violation of his rights.
Silver Depo. at 4A-5A. At present, 68 of the 87 of CUNY's
Distinguished Professor seats are filled by white males.
Defendant's 3(g) ¶ 15.
Silver, a white male, and an unsuccessful candidate for the
position of Distinguished Professor alleges that he failed to
honor because he is a victim of CUNY's policy of reverse
discrimination against white male candidates, especially those
who are already on the CUNY faculty.
Title VII is limitless in its scope to protect all
individuals, regardless of race. It broadly prohibits
discrimination "against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a). "Similarly, the
EEOC, whose interpretations are entitled to great deference,
has consistently interpreted Title VII to proscribe racial
discrimination in private employment against whites on the same
terms as racial discrimination against nonwhites." McDonald
v. Santa Fe Trail Transportation Co., 427 U.S. 273, 279,
96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976). Thus, Silver has a
perfectly viable claim if he can satisfy certain requisite
burdens. In actions brought under Title VII, the plaintiff
bears the burden of initially proving a prima facie case.
Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991)
(citing Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207
(1981)). Proof of discriminatory motive is critical.
International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n.
15, 52 L.Ed.2d 396 (1977); accord Zahorik v. Cornell
University, 729 F.2d 85 (2d Cir. 1984). In order to carry
the initial burden a plaintiff must show:
(i) that he belongs to a [protected group];
(ii) that he applied and was qualified for a job
for which the employer was seeking applicants;
(iii) that, despite his qualifications, he was
rejected; and (iv) that, after his rejection, the
position remained open and the employer continued
to seek applicants from persons of complainant's
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted).
Thus, Silver must show that he was a member of a protected
group, was qualified for the position sought, and was denied it
in circumstances permitting an inference of discrimination.
Zahorik v. Cornell University, 729 F.2d 85, 92 (2d
Cir. 1984). Pursuant to Title VII, Silver is obviously a member
of a protected class in the disparate treatment and reverse
discrimination arena. CUNY admits that Silver was qualified for
the position of Distinguished Professor, but maintains that a
question of fact is raised as to whether he was the most amply
qualified faculty member at the time that he sought nomination.
Finally, there is a dispute that Silver was denied the honor
under circumstances permitting an inference of discrimination.
Assuming arguendo that there exists sufficient
evidence to create a triable issue of fact as to a prima facie
case, then there is a shift in the burden of persuasion and
defendants must then articulate either a legitimate,
nondiscriminatory reason why the "plaintiff was rejected, or
[that] someone else was preferred, for a legitimate,
nondiscriminatory reason." Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67
L.Ed.2d 207 (1981). In order to carry that burden, the evidence
must show more than a mere disagreement about the merits of a
Absent evidence sufficient to support a finding
that such disagreements or doubt are influenced by
forbidden considerations such as sex or race,
universities are free to set their own required
levels of academic potential and achievement and
to act upon the good faith judgments of their
departmental faculties or reviewing authorities.
Zahorik v. Cornell University,