The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
Plaintiff Dr. Joseph V. Scelsa, the Director of the John D. Calandra Italian American Institute ("Institute") of the City University of New York ("CUNY"), is before this court seeking a preliminary injunction barring defendants from employment discrimination against Italian-Americans and from relocating the Institute and transferring its operations to several different units of CUNY located around the city. Plaintiffs complaint alleges, in essence, that Italian-Americans have been discriminated against in employment because of their national origin, particularly with respect to recruitment and promotion of faculty by defendants.
The complaint also alleges that in retaliation for plaintiffs having filed a complaint with the United States Department of Labor charging CUNY with discrimination against Italian Americans in violation of Title VI of the Civil Rights Act of 1964, Dr. Scelsa has been stripped of his authority as director of the Institute and the Institute's programs have been transferred to other CUNY units. For the reasons set forth below, a preliminary injunction is granted enjoining discrimination against Italian-Americans with respect to faculty recruitment and promotions and enjoining the dismemberment of the Institute and the removal of Dr. Scelsa as director of the Institute, pending the trial of this action.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. CUNY IS A STATE INSTITUTION
City University of New York is a self-governing assemblage of 21 educational subdivisions. The nine senior 4-year colleges are funded by the State of New York, see N.Y. Education Law § 6230 (McKinney 1992). The seven community colleges are funded jointly by the State and the City of New York. N.Y.Education Law § 6304 (McKinney 1992). While the College of Staten Island is a four-year senior college, it also accepts students who seek a two-year degree, and thus receives some City funds to help cover the costs of those students. N.Y. City Education Law § 6221(C)(i). The Italian American Institute is supported solely through state funds (Tr. 683). During the fiscal year 1992-1993, the Institute was allotted some $ 912,000; during fiscal year 1991-1992, roughly $ 906,000; and in fiscal year 1990-1991, $ 860,000 (Tr. 987).
B. HISTORY OF ITALIAN-AMERICANS AND THE ITALIAN AMERICAN INSTITUTE AT CUNY
In the mid- to late-1970s concern about the historical under-representation of Italian-Americans on the CUNY faculty and staff and the perception that there was widespread discrimination against Italian-Americans by CUNY led to action on the part of both CUNY and elected officials.
In 1976, Chancellor Kibbee of CUNY issued a directive to the CUNY Council of Presidents concerning the educational under-representation of Italian-Americans in the student body and on the faculty ("the Kibbee Memorandum"). Chancellor Kibbee stated in that letter that "I am designating Italian-Americans as an affirmative action category for this University in addition to those so categorized under existing Federal statutes and regulations. I also have instructed the Affirmative Action Office to include Italian-Americans in the data collected for affirmative action purposes." (Plaintiff's exhibit 4) (emphasis supplied).
As a result of these actions, the John D. Calandra Italian American Institute was created by the State legislature in 1979. (Tr. 64). Originally, the Institute was an entity separate and independent from CUNY. (Tr. 984). It was reorganized as a division within CUNY by the New York State Legislature in 1984-85. While not technically a "research institute" as defined by CUNY bylaws, it conducts much research into the role, place, and problems of Italian-Americans in New York City and within the CUNY system. In 1989, the Office of Management and Productivity conducted, at the request of the Governor, a management review of the Institute (Ct. Ex. 1, the MAP Report). As noted in the MAP Report, the research component is an active and integral aspect of the Institute, and its activities are coordinated "with CUNY's Office of Institutional Research and Analysis" (MAP Report at 22), indicating that the Institute's research initiatives are integrated with other campus research activities.
Much of the Institute's work is not pursuant to University directive; indeed, it appears from the record that CUNY pays little attention, if any, to the work, goals, and concerns of the Institute and Italian-Americans in general. Instead, much of the Institute's activity arises out of the initiative of its members, particularly its Director, Dr. Scelsa. It is this activity which, plaintiff contends, has drawn the discriminatory ire of the University. It is unclear whether the University dislike of Dr. Scelsa and the institute is motivated by an anti-Italian discriminatory animus. What is clear, however, is that CUNY is seeking to the curtail the independence of the Institute and put Dr. Scelsa on a shorter leash, one on which he lacks the room to bite his master CUNY. The MAP Report advised that CUNY more directly administer the Institute and exercise oversight on its activities. The MAP Report saw the Institute as too dependent on the views and direction of Dr. Scelsa, and not subject enough to the direct control and desires of the CUNY administration. (Ct. Ex. 1, MAP Report at 30-32).
Dr. Scelsa has been director of the Institute since August, 1984. He had also worked in the Office of Student Affairs and Special Programs at the University from September 1980 to October 1981 (Pl. Ex. 40).
The Institute is a central locus for Italian-American activism (See, e.g. Tr. 374-76; 553-54). The Institute currently is engaged in numerous outreach programs directed not only at the Italian-American community but also at fostering and improving intergroup relations. (See, e.g. Tr. at 288-92).
The directive embodied in the Kibbee Memorandum was reaffirmed in 1986 by Chancellor Joseph Murphy ("the Murphy letter"). "In December, 1976, Chancellor Robert J. Kibbee established Italian-American as an Affirmative Action Category within the City University of New York, a decision I now reaffirm. The 1976 action represented a formal extension of the Federally defined protected classes for purposes of the University's Affirmative Action Program to include an additional group as a protected class." (Plaintiff's Exhibit 4A) (emphasis added).
Still, the Murphy Letter left dissatisfied many officials and members of the Italian-American community who felt that Italian-Americans still suffered discrimination and were still under-represented at CUNY. In 1988, the New York State Italian-American Legislator's Club communicated its concerns and desires about the situation of Italian-Americans at CUNY to Chancellor Murphy. (Pl. Ex. 17) In this letter the Club conveyed to the Chancellor their frustration with what they perceived to be CUNY's inadequate response to the affirmative action designation of Italian-Americans. In addition, they urged that better space be provided for the Institute at the Graduate Center.
In 1990, a Committee on Urban Public Higher Education (known as the Massaro Commission, after its Chair, State Supreme Court Justice Massaro) was formed by Italian-American political officials and community activists to investigate and redress perceived discrimination against Italian-Americans at CUNY. (Tr. 464-465). The Massaro Commission recommended, among other things, that the Institute be given more power and responsibilities. (1991 Report of the Advisory Committee on Urban Public Higher Education, Pl. Ex. 15 at 9). It also urged that the Institute be associated with the Graduate School for research purposes, with Dr. Scelsa being elevated to Dean of the Institute (Tr. 471; Pl. Ex. 44, 45).
However, the plan that CUNY eventually decided to adopt was significantly different from that proposed by the Massaro Commission. The CUNY plan, labelled the Volpe plan after President Volpe of the College of Staten Island, the official in charge of assembling it, provided for, inter alia, the relocation of the Italian American Institute to the College of Staten Island (where President Volpe would have authority over it) and the removal of Dr. Scelsa as Director. It appears that defendants want to, in their words, "elevate" the Institute, and in so doing, to sever the outreach, counselling, and research aspects of the Institute. Dr. Scelsa, a thorn in the side of the University, is to be shunted aside as its Director during this reconfiguration, to remain in charge of the outreach function. Not surprisingly, Dr. Scelsa is rather unhappy with this proposal, and foreseeing this outcome, defendants insured that at no time during the planning of this reconfiguration was the plaintiff (or any other member of the Institute, for that matter) made privy to the planning process.
During the latter half of 1991 and the first half of 1992 various university officials, including the Chancellor, Vice-Chancellor Bloom, Vice Chancellor Hershenson, Acting Vice Chancellor Keizs, Deputy Chancellor Mucciolio, and President Volpe of the College of Staten Island, discussed among themselves plans for changing the role, location, and direction of the Institute (Tr. 925-26). Dr. Scelsa was not part of this or any other in this series of meetings, (Tr. 926), nor was any other member of the Institute. The result of all of this is what has come to be known as the Volpe proposal (Defendants' Ex. E), in which the Institute would be transferred to the College of Staten Island, and Dr. Scelsa would be transferred to the admissions office at 31 Street. Fears that the Italian-American community might be ill-served by CUNY's attempt to reconfigure the Institute motivated numerous public officials and Italian-American community activists to contact CUNY officials to register their concerns. After contact with numerous elected officials, including New York City Council Speaker Peter Vallone, Chancellor Reynolds made several modifications to the Volpe proposal (Tr. 701), so that Dr. Scelsa would work on admissions at the Office Of Admissions Services at 31 Street, while the rest of the Institute goes to the College of Staten Island. While rumors of the proposed modifications to the Institute were rampant, no one in the University hierarchy ever formally notified those affected by the plan of a move to take effect on September 1, 1992, until a letter dated August 26, 1992. (Pl. Ex. 20). Vice-Chancellor Kiezs was in charge of sending out this notification. (Tr. 1112-13). Only Dr. Scelsa was notified by letter dated August 26; other employees were notified by letter dated August 28. (Tr. 1165).
D. THE ALLEGED RETALIATION AGAINST PLAINTIFFS
Dr. Scelsa and the Institute have played a significant role in the formulating of various civil rights complaints against CUNY. (Tr. 306-08).
Deputy Chancellor Muciolo testified that he was aware that plaintiffs had filed a discrimination complaint against CUNY with the Department of Labor and was aware that Dr. Scelsa was one of the named complainants. (Tr. 1072-73).
Plaintiff has alleged a widespread pattern and practice of discrimination against Italian-Americans at CUNY. On July 27, 1990 numerous Italian-American complainants filed a class action complaint with the Department of Labor regarding this alleged pattern and practice (Plaintiff's Exhibit 1). This complaint was signed by Dr. Castiglione, a CUNY faculty member at Queens College, and the contact person for the Italian-American Legal Defense and Higher Education Fund, the entity representing the plaintiffs in that complaint (Pl. Ex. 1). Plaintiff Scelsa and the Institute played a leading role in the Department of Labor complaint, assisting in its investigation and compilation. Dr. Scelsa and Dr. Castiglione arranged meetings with the listed complainants at the offices of the Institute (Tr. 308). Maria Fosco, Dr. Scelsa's secretary, also assisted in the filing of the complaint and offered secretarial support services (Tr. 345-46).
On August 26 and August 28 of this year (Tr. 1165) plaintiff and other members of the Institute were sent letters from the administration of the City University of New York, notifying them that on September 1, 1992, they and the Institute would be split up and moved to several of CUNY's units, and that the Institute, itself, would be relocated to the College of Staten Island from its current location on 43rd Street in rented space in the Grace Building in midtown Manhattan.
On September 9, 1992 plaintiff hurriedly sought and obtained a temporary restraining order blocking defendants CUNY and Chancellor W. Ann Reynolds from carrying out the planned move pending a hearing on plaintiff's motion for a preliminary injunction. From September 21 to October 6 this court heard testimony and received evidence relating to plaintiffs' civil rights claims.
E. ALLEGATIONS OF DISCRIMINATION AGAINST ITALIAN AMERICANS IN FACULTY RECRUITMENT AND IN EMPLOYMENT
Plaintiffs have alleged a long history of discrimination at CUNY, a history going back several decades. See Calandra Report, and Pl. Ex. 17. Currently, as noted above, there is pending a civil rights complaint with the Department of Labor's Office of Contract Compliance. outlining a number of instances and practices of alleged discrimination against Italian-Americans. See Pl. Ex. 1.
In this action, plaintiffs have presented much evidence of individuals of Italian-American background suffering from discrimination, supplementing their statistical analysis with evidence of individuals suffering disparate treatment.
Plaintiffs' testimony shows numerous examples of individual Italian-Americans who suffered adverse employment decisions, without any satisfactory explanations by defendants of a legitimate non-pretextual reason for this treatment. For example, Professor Manfredi Piccolomini testified that he was discriminated against on the basis of his national origin in regard to a promotion he sought. Prof. Piccolomini filed a formal complaint, which was eventually settled, with the complainant being promoted to the position in question. (Tr. 99-101).
Dr. Milione testified that following standard application procedures he applied for a position within the University, a position for which he was extremely well-qualified on the basis of his education, training and experience. Not only did Dr. Milione not receive the position he sought, he did not even obtain an interview. Instead, the position went to an individual, Dr. Braswell, who was found to have plagiarized large sections of Dr. Milione's work.
Dr. Milione was eventually told by a member of the CUNY unit with which he sought a job that his position in the Institute was held against him. Dr. Milione's testimony was unrebutted by defendants (Tr. 187-96).
Additionally, Maria Grace La Russo testified credibly as to the discrimination suffered by her at Hunter College. Ms. La Russo was hired to be a counselor at Hunter College, with a mission to meet with students of all backgrounds and ethnicities but with a concentration among the Italian-American students. Ms. La Russo was hired in 1980, and up until the present day has received a chilly and ofttimes vicious reception (Tr. 407-31). During her decade at Hunter, Ms. La Russo has received her doctorate and a postmaster's certificate (Tr. 412) and also has consistently received above average evaluations. (Tr. 413). Nonetheless, in her twelve years at Hunter Dr. La Russo has failed to receive a single promotion (Tr. 411). Credible testimony established that her association with the Institute was held against her by members of the Hunter administration.
In addition to the evidence detailing individual instances of discrimination, this court received statistical evidence regarding discrimination against Italian-Americans on a class-wide basis, in particular evidence concerning CUNY's failure to live up to the promises made in both the Kibbee Memorandum and the Murphy Letter. Not surprisingly, defendants contest the validity of the methodology used and the results obtained by plaintiffs.
The crux of plaintiff's statistical evidence is comprised of two data surveys prepared by Dr. Milione. In the first, plaintiff utilized United States Census data of individuals with eight-plus years of post-secondary education (the "8 years" criterion). Plaintiffs testify that they used the 8 years criterion because the available census data does not include information on what advanced degrees census respondents have acquired. The plaintiff then filtered this data to develop the applicable labor pool by assuming that CUNY obtains its staff largely from the tri-state region; therefore, plaintiffs obtained the applicable labor pool by weighting the numbers of Italian-Americans in the tri-state region by 80%, and the Italian-American pool nationally by 20%, to arrive at the applicable labor pool of Italian-Americans available to CUNY (see testimony of Dr. Vicenzo Milione).
Defendants contest the force of these statistics. In respect to the first data survey, defendants challenge both the validity of the 8 years criterion as a measurement of those employable at CUNY, as well as Dr. Milione's weighting of the statistics to emphasize population availability from the tri-state region. Defendants also challenged the results of the survey on the grounds that it used old data from the 1980 census. Defendants presented their own expert evidence to review the data submitted by plaintiffs, Dr. John Mollenkopf. He is a CUNY Graduate Center faculty member currently on leave (Tr. 1312-1313), and he disputed both the usefulness of the 8 years criterion as well as the geographical weighting used by plaintiffs.
Defendants' analysis raised some doubts that plaintiffs' statistical evidence regarding the available labor pool of Italian-Americans is 100% accurate. However, plaintiffs need not present a perfect depiction of what is certainly a complex demographic phenomenon. For example, while it would be preferable to use data of a more recent vintage than that from the 1980 census, there is no other more recent data base available. The results of the 1990 census were not known at the time Dr. Milione conducted the study. Plaintiffs, it appears, used the best available evidence, and defendants should not complain since they have failed to produce a superior data base. Plaintiffs have convinced this court that, regardless of its stated intention to increase Italian-American representation on the staff and faculty, the percentage of Italian-Americans in the CUNY workforce is significantly less than the available labor pool. Regardless of the inadequacies in plaintiff's survey evidence, this court concludes that while the exact percentage by which CUNY underemploys Italian-Americans is not ascertainable with the exactitude one might like, it is clear that CUNY's employment of Italian-Americans is not only significantly less than what it should be, according to the available pool, it also is unconscionable given the existence of an affirmative action commitment on the part of CUNY. CUNY undertook an obligation to increase Italian-American representation; regardless of the exact breadth of the available labor pool, CUNY must undertake to increase the numbers of Italian-American employed at CUNY, absent a showing on its part that such a task cannot be accomplished.
Defendants have failed to articulate a legitimate nondiscriminatory reason for the CUNY employment regime under which the percentage of Italian-Americans has remained constant even though in 1976 the University identified Italian-Americans as a protected class and vowed affirmative action to increase the representation of Italian-Americans.
In the first place, plaintiffs' testimony that there are no Italian-Americans at the Graduate Center is undisputed (Tr. 282). Defendants have not presented any reason, legitimate or not, as to why this is the case. Secondly, defendants have provided no reasons for the current low employment percentage of Italian-Americans in the CUNY staff and faculty workforce. When defendants in a civil rights case such as this can provide no reasons for the under-representation of a protected class within a workforce, the inference is that the only rational way to explain the disparity is discrimination. When, in addition, there has been an affirmative statement on the part of the defendant as to an intent to increase such representation through affirmative action of one kind or another, such a failure to explain the employment disparity is even more suspect.
Additionally, plaintiffs can satisfy their initial burden via the production of statistical evidence, and such evidence may be received with additional force if supplemented with additional evidence of individuals "with similar experience and qualifications" suffering disparate treatment. Wade v. Mississippi Cooperative Extension Serv., 528 F.2d 508, 516-517 (5th Cir.), on remand 424 F. Supp. 1242 (N.D.Miss. 1976). This plaintiffs have done.
Also, plaintiffs' comparison of the percentage of Italian-Americans at area colleges and universities demonstrates that many similarly situated employers in the immediate geographical vicinity employ a much higher percentage of Italian-Americans on staff and faculty. This achievement appears to have been accomplished notwithstanding the fact that these other institutions lack the stated policy commitment that CUNY has voluntarily ...