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April 22, 1991


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, ¶ 8.

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 9-10.

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 win that 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 ...

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