evidence of discriminatory intent." Richards, 668 F. Supp. at 266.
Such disregard can be found here. Throughout the hearing for the preliminary injunction, defendants accepted as valid the Kibbee Memorandum and the Murphy Letter. Defendants also admit that the number of Italian-Americans on the CUNY executive staff and faculty has remained constant, at around five percent, from 1978 to the present (Defendants Proposed Findings of Fact and Conclusions of Law at 32-33). Yet certain key individual administrators denied on record that Italian-Americans were either a protected class or the subject of affirmative action within CUNY. Sylvia Miranda, the ex-Director of the Office of Affirmative Action, stated that she knew of no plan to include Italian-Americans as a protected class, and that between 1988 and 1989, when she was Director, the Office had no plans whatsoever to increase Italian-American representation, 14 years after the creation of such a plan had been directed (Tr. 1273-1277). The present Chancellor of CUNY, W. Ann Reynolds, testified that Italian-Americans are not a designated affirmative action group. (Tr. 727-728). The Chancellor stated (Tr. 730) that she would not be convinced of the existence of any problem until the analysis of the 1990 United States Census was complete, even though the identification of the problem was made a decade and a half ago. This court must find that CUNY's current policy represents either an attempt to renege on the promises of the past or, by denying that such promises were ever made or intended to be kept, a reaffirmation of the original finding of discrimination against and under-representation of Italian-American that motivated the original Kibbee Memorandum and its reaffirmation with the Murphy letter.
This court finds that plaintiffs have shown irreparable harm and have presented sufficiently serious questions going to the merits to make them fair grounds for litigation and have shown a balance of hardships tipping decidedly in their favor. For these reasons, plaintiff's request for a preliminary injunction barring defendants from discriminating against Italian Americans in employment and relocating the Institute pending trial is granted.
"Once a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it deems appropriate. The bounds of the court's discretion are set in part by Title VII's goals of preventing discrimination and achieving equal employment opportunity." Bridgeport Guardians, 933 F.2d at 1149.
Defendants contend (See, e.g. Defendants' Proposed Findings of Fact and Conclusions of Law at p. 22) that the commitment embodied in the Kibbee Memorandum and in the Murphy Letter has absolutely no binding legal force because it was not obtained as a result of a court-ordered settlement or as part of a finding of discrimination. Not only does this contention ignore the historical context in which these obligations were undertaken, and the fact that CUNY made these promises partly in reaction to findings by certain legislative groups of past discrimination, it also misstates the applicable law. Under Title VII, voluntary compliance and achievement of a remedial scheme is preferred. Bushey v. N.Y. Civil Serv. Com'n, 733 F.2d 220, 226-27 (2d Cir. 1984). CUNY's promises are not to be avoided merely because CUNY undertook its commitment to increase Italian-American representation without forcing all parties to suffer through what would probably be lengthy and expensive litigation. An employer is entitled to seek to remedy the under-representation of a minority via the voluntary adoption of schemes designed to increase such representation. A "manifest imbalance" that reflects under-representation of Italian-Americans at CUNY would serve to justify such a program. Johnson v. Transportation Agency, 480 U.S. 616, 631-32, 94 L. Ed. 2d 615, 107 S. Ct. 1442 (1987); Steelworkers v. Weber, 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979). CUNY has been made aware with complaints and reports by government officials (See, e.g. the 1978 Calandra Report, Pl. Ex 16, the Report of the Massaro Commission, Pl. Ex. 15, and the 1988 Letter from the New York State Italian-American Legislators Club, Pl. Ex. 17) of the problem of anti-Italian-American discrimination and under-representation, and has twice undertaken to rectify the imbalances identified (Pl. Ex. 4, 4A).
Defendant CUNY undertook an obligation to increase the numbers of Italian-Americans employed in its workforce, an obligation it has failed to discharge. Plaintiff is granted the relief sought, on the grounds that his presence at the Institute, as currently configured, has acted as a spur to CUNY. This court lacks the confidence that, pending trial, CUNY will address these problems without Dr. Scelsa at his present position. Dr. Scelsa must remain in place, pending trial. At trial, CUNY is invited to present for the court's satisfaction a plan to set the goals and fulfill the promises first undertaken in the 1976 Kibbee Memorandum but ignored since then.
Until this court is convinced that CUNY has presented a viable plan to achieve these long-unfulfilled promises, the status quo as to the Calandra Institute is preserved pending resolution of the issues presented as to same at trial. The Chancellor and CUNY are enjoined pending trial from discriminating against Italian-Americans in employment.
Submit Order on 15 days notice.
New York, New York
November 18, 1992
Constance Baker Motley