The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.
Plaintiff Morris Silver is a Professor of Economics. He
brings this employment discrimination action against defendants
the City University of New York ("CUNY"), its Board of
Trustees, Bernard W. Harleston, Joseph S. Murphy and James P.
Murphy, claiming violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq., and
42 U.S.C. § 1983. The parties cross-move pursuant to
Fed.R.Civ.P. 56(c) for summary judgment.
Silver has taught at the City College of the CUNY system*fn1
since 1961 and has served as chair of the Economics Department
since 1969. Silver's Deposition ("Depo.") at 7. Published
widely, Silver has concentrated his academic efforts in the
area of historical economics. Silver Depo. at 6-7.
CUNY recognizes, and chooses academicians for, a certain
honor known as a Distinguished Professorship.*fn2 As
delineated in the City University By-Laws, a Distinguished
Professorship is reserved for a small number of truly
extraordinary scholars. The applicant must be a Full Professor
and "a person of outstanding merit and accomplishment in
his/her field." The honor carries a stipend of $20,000 above
the normal salary and this distinction is reserved for no more
than 125 of the approximately 2,300 full professors on CUNY's
faculty. Bloom Affid. ¶¶ 4, 5. Sometime in early 1987,
Silver mentioned to members of the Economics Department's
Executive Committee that he was interested in being considered
for a Distinguished Professorship. Silver Depo. at 8-9. He
submitted a statement expressing his interest and outlining his
recent work. Silver Depo. at 8-9.
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.
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 ...