vote in the faculty of which they are members and in their respective departments. (Def.'s Exh. II at 8.1.)
38. Dr. Spencer was not included on a committee formed to respond to the concerns of ABET, an accreditation society that threatened to deny accreditation to COSI. This committee first met on October 24, 1988 and met several times thereafter. (P.'s Exh. 28.) Other professors in the Applied Sciences Department, including Profs. Chencinski and Monahan, were not invited to these committee meetings. There is no evidence that Dr. Spencer was not included on this committee as retaliation for any of his complaints.
39. After Dr. Spencer was not reappointed for a fourth time, Razelos performed an inventory of equipment in Dr. Spencer's laboratory. The purpose of this audit was to enable the Department to deploy any resources once Dr. Spencer left COSI.
40. COSI did not retaliate against Dr. Spencer because of any complaints that he made about his treatment.
II. CONCLUSIONS OF LAW
Dr. Spencer alleges both that the defendant's decision not to grant him a fourth reappointment was discriminatorily based on his religion, and that the defendant engaged in retaliatory acts when he complained about what he perceived as religious discrimination.
1. In an employment discrimination case based on religious discrimination, the plaintiff bears the burden of proving by a preponderance of the evidence that the defendant intentionally discriminated against him because of his religion. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-12, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). The plaintiff may establish a prima facie case of discrimination by proving by a preponderance of the evidence that he (1) is a member of a protected class; (2) was qualified to perform the duties required by the position; and (3) suffered an adverse employment action under circumstances giving rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Hargett v. National Westminster Bank, 78 F.3d 836, 838 (2d Cir. 1996).
2. Once a plaintiff establishes a prima facie case, an inference of discrimination arises, and the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate non-discriminatory reason for the employment action. Hicks, 509 U.S. at 510; McDonnell Douglas, 411 U.S. at 802; de la Cruz v. New York City Human Resources Admin. Dep't of Social Servs., 82 F.3d 16, 20 (2d Cir. 1996). If the defendant is produces evidence of a nondiscriminatory reason for the employment action, the plaintiff has the opportunity to prove that the reasons offered by the defendant were not the true reasons for the employment action, but were a pretext for discrimination. Hicks, 509 U.S. at 509-10; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas, 411 U.S. at 804; Hargett, 78 F.3d at 838; de la Cruz, 82 F.3d at 20.
3. Once the defendant has met its burden of producing nondiscriminatory reasons for its actions, as it has in this case, the presumption created by the prima facie case drops out of the picture, and the trier of fact must decide the ultimate question, which is whether the plaintiff has proven that the defendant intentionally discriminated against him because of his religion. Hicks, 509 U.S. at 510-11; United States Postal Serv. v. Aikens, 460 U.S. 711, 714-16, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). The plaintiff retains the burden of persuasion to prove that the defendant intentionally discriminated against him because of his religion.
4. The plaintiff is not required to prove that religion was the sole or exclusive motivation for the defendant's actions. The plaintiff need only show that religion was a motivating factor in this defendant's decision not to reappoint him. Ostrowski v. Atlantic Mut. Ins. Co., 968 F.2d 171, 181-82 (2d Cir. 1992); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir. 1992).
5. The defendant has successfully met its burden of production by producing evidence that its decision not to reappoint Dr. Spencer for a fourth time was based on legitimate nondiscriminatory reasons. Specifically, the defendant has shown that Dr. Spencer was not reappointed a fourth time because the Department Applications Committee, the Personnel and Budget Committee, and President Volpe believed that Dr. Spencer had not demonstrated excellence in teaching and lacked dedication to constructing an experimental laboratory in solid mechanics. I find that this evidence was credible and persuasive and that Dr. Spencer's religion was not a motivating factor in the decision not to reappoint him.
6. The plaintiff has failed to establish by a preponderance of the evidence that COSI's decision not to reappoint him was because of his religion. I find that on the contrary, based on all the evidence and my assessment of the witnesses' credibility, that the defendant's decision not to reappoint Dr. Spencer was wholly unrelated to his religion.
7. I find that COSI's proffered reasons for not reappointing the plaintiff were not pretextual but were in fact the true reasons for not reappointing him.
8. The only evidence that the plaintiff's religion played any part in the defendant's employment decision is Prof. Razelos's comment at the Department Appointments Committee meeting called to decide whether to recommend the plaintiff for a fourth reappointment. Prof. Razelos was not a voting member of the Department Appointments Committee, however, and thus the anti-semitic animus of Prof. Razelos this comment indicates does not by itself demonstrate that the defendant's decision not to reappoint the plaintiff had anything at all to do with his religion. Indeed, the three committee members who appeared at trial credibly testified that they disregarded Prof. Razelos's comment and that they in fact reprimanded Prof. Razelos for making such a comment and for even raising any issue that was unrelated to Dr. Spencer's qualifications for reappointment.
9. The fact that Prof. Razelos's evaluation of Dr. Spencer may have been tainted by Prof. Razelos's anti-semitism is not sufficient to impute a discriminatory animus to the voting members of the Committee. Those individuals who actually determined whether Dr. Spencer should be reappointed for a fourth time were not themselves motivated to vote against Dr. Spencer because of his religion, and the plaintiff does not argue that they were. Indeed, two of the members of the Department Appointments Committee were Jewish, and one of them was a concentration camp survivor who lost almost his entire family during the Holocaust. Both of these professors voted against recommending Dr. Spencer for reappointment. Furthermore, the three members of the Committee who testified at trial credibly testified that they disregarded Prof. Razelos's comment and that Dr. Spencer's religion was not at all a factor in their decision not to recommend Dr. Spencer for reappointment. Similarly, the plaintiff presented no evidence that the Personnel and Budget Committee's decision not to recommend him for reappointment was motivated at all by discriminatory animus, and the same is true for President Volpe's decision. The Personnel and Budget Committee and President Volpe were told that Prof. Razelos had made an anti-semitic comment, and they promptly disavowed its relevance to their decision regarding Dr. Spencer.
10. Nor is there any evidence that any bias by Prof. Razelos affected the ultimate vote on Dr. Spencer's reappointment. Profs. Chencinski, Levine, and Weiszmann credibly testified that when they voted against recommending Dr. Spencer for reappointment, they did so because they had made an independent judgment that he had a poor teaching record and had failed to show dedication to the creation of an experimental solid mechanics lab. For example, Prof. Levine had previously given Dr. Spencer a poor teaching evaluation in 1986, and testified that in all of his years of evaluating teachers for reappointment, Dr. Spencer was the worst one he had ever seen. All three men testified that many students had complained to them that they did not want to take classes with Dr. Spencer and that he had a condescending and belligerent attitude towards them. All three professors stated that they were dissatisfied with Dr. Spencer's progress with the experimental solid mechanics laboratory, the development of which was the primary reason Dr. Spencer was originally hired as a full-time professor. Similarly, President Volpe testified that he never saw someone receive tenure--for which Dr. Spencer would have been considered at his fifth reappointment--with the kind of student evaluations Dr. Spencer had. The vote of the Committee was unanimous and was taken by secret ballot.
11. Prof. Razelos's negative evaluation of Dr. Spencer is amply supported by the record, which indicates that Dr. Spencer was not a strong teacher and that he failed to complete the creation of an experimental solid mechanics laboratory or to publish research conducted using this laboratory. The plaintiff spent much time at trial attempting to discredit the defendant's judgments regarding Dr. Spencer's performance in the classroom and in the development of the laboratory. The testimony of the professors is credible, however, that the standards of reappointment become more critical as a professor approaches the tenure determination and that Dr. Spencer failed to measure up to these standards. While Dr. Spencer attempted to explain away why he had not performed in ways expected of him, the Committee had the right not to accept those explanations and to look for more concrete results, particularly from a faculty member who was approaching the tenure decision. As Prof. Levine stated at trial, the Committee's role was to judge Dr. Spencer's performance, not his excuses. In sum, the plaintiff has presented absolutely no evidence that those individuals who actually decided not to recommend the plaintiff for a fourth reappointment were themselves motivated by discriminatory animus to do so or that they relied on a report that was tainted as the result of discriminatory bias.
12. Because the plaintiff has failed to prove that his religion was a motivating factor in the defendant's decision not to reappoint him, it is not necessary to undertake the Price Waterhouse "mixed motives" analysis. See Price Waterhouse v. Hopkins, 490 U.S. 228, 247, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989); Hargett, 78 F.3d at 840; Ostrowski, 968 F.2d at 181 ("The Price Waterhouse issue does not arise for the trier of fact until the plaintiff has carried the burden of persuading the trier that the forbidden animus was a motivating factor in the employment decision but has failed to persuade the trier that non-discriminatory reasons proffered by the employer were pretexts and not also motivating factors.")
1. The plaintiff claims that the defendant retaliated against him for his opposition to what he believed to be discriminatory acts.
2. Section 704(a) of Title VII provides, in part, that:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). The burden-shifting analysis of retaliation claims follows the same analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See Tomka v. Seiler Corp., 66 F.3d 1295, 1307 (2d Cir. 1995). Thus, after the plaintiff establishes a prima facie case of retaliation, the defendant must articulate a "legitimate, nondiscriminatory reason" for its actions, at which point the plaintiff has the opportunity to prove that the proffered reason is merely a pretext for discrimination. The plaintiff always bears the burden of persuasion that the defendant retaliated against the plaintiff. Id.
3. To establish a prima facie case of retaliation, the plaintiff must demonstrate that (1) he was engaged in an activity protected by Title VII; (2) the employer was aware of the plaintiff's participation in the protected activity; (3) the employer took adverse action against the plaintiff; and (4) a causal connection existed between the protected activity and the adverse action. Tomka, 66 F.3d at 1308; Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
4. Dr. Spencer claims that the following adverse employment actions were taken in retaliation for his opposition to what he believed to be discriminatory acts: (1) he was given a poor teaching evaluation after his reappointment was denied; (2) he was excluded from participating in various meetings which he had previously attended; and (3) he was subjected to increased scrutiny of his laboratory and its equipment.
5. The plaintiff has failed to sustain his burden of proving that any of these actions were taken as a result of his opposition to what he believed was discrimination. The defendant has articulated a legitimate nondiscriminatory reason for each alleged retaliatory act, and the plaintiff has failed to demonstrate that these proffered reasons are merely a pretext for retaliation.
6. The plaintiff has failed to demonstrate that the 1988-89 teaching evaluation of him conducted by Prof. Levine was done in retaliation for the plaintiff's protected activity. When Prof. Levine had reviewed Dr. Spencer's teaching in November 1985, Prof. Levine reported that Dr. Spencer had a belligerent attitude towards his students and that his teaching was adequate but could be improved. The poor 1988-89 evaluation of Dr. Spencer's teaching was in keeping with Prof. Levine's earlier evaluation. In addition, Profs. Chencinski, Levine, and Weiszmann all testified that they had received informal complaints from students about Dr. Spencer's teaching. Furthermore, even if Prof. Levine's 1988-89 evaluation of Dr. Spencer was out of line with previous evaluations of Dr. Spencer's teaching, which it was not, Dr. Spencer failed to show that there was any sort of causal connection between his protected activity and this poor evaluation. At trial Dr. Spencer suggested that this evaluation was completed simply to harass him, given that he already had been denied reappointment. The university rules belie this argument, however, because they provide for an annual review of a professor's teaching performance regardless of whether he is reappointed or not.
7. The plaintiff has also failed to show that his exclusion from some departmental meetings was retaliatory conduct. His exclusion was consistent with the Bylaws of the Trustees of COSI. He was excluded only from meetings concerning the future of the Department, which was understandable given the fact that he was not reappointed and did not have a stake in the future of the Department. Moreover, the plaintiff failed to prove that these actions were even adverse decisions. Other professors in the Department also were not invited to these meetings, and there was no evidence that attendance at such meetings was a benefit of employment. At the time Dr. Spencer was not invited to some Department meetings, it had already been determined that Dr. Spencer would not be reappointed for the following academic year, and thus it made perfect sense not to include him in long-term planning activities.
8. Finally, Dr. Spencer has failed to prove that the increased scrutiny of his laboratory and its equipment was a retaliatory act. The credible testimony was that it was necessary to keep an inventory of the equipment in Dr. Spencer's laboratory in order to know how this equipment could best be used elsewhere at COSI after Dr. Spencer departed.
For all of the foregoing reasons, the defendant's motion for judgment at the close of all the evidence is GRANTED, and judgment is ordered to be entered for the defendant dismissing the plaintiff's complaint with prejudice.
Dated: June 26, 1996
New York, New York
John G. Koeltl
United States District Judge