violation theory. Relying on out-of-circuit authority, he appears to contend that Cornell maintained a discriminatory promotion policy up to the time of the filing of his EEOC complaint. Accordingly, he argues that the statutory period had not been triggered and his June 1993 filing with the EEOC was timely as to all the stated claims.
I disagree. The courts of this circuit do not favor continuing violation arguments. See Lloyd v. WABC-TV, 879 F. Supp. 394, 399 (S.D.N.Y. 1995); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989). "Indeed, only 'compelling circumstances' will warrant application of the exception to the statute of limitations." Blesedell, 708 F. Supp. at 1415, citing LaBeach v. Nestle Co., Inc., 658 F. Supp. 676, 687 (S.D.N.Y. 1987). As the Second Circuit explained in Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), "the continuing violation exception applies to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists, or discriminatory employment tests. However, multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." (Citations omitted.)
In the instant case, Samimy has failed to produce any evidence supporting the existence of a discriminatory policy or mechanism. Instead, he simply asserts that his lack of promotion, demotion, and ultimately his termination can only be explained by discriminatory motives. Such "conclusory allegations of discrimination are insufficient to satisfy the requirements of Fed.R.Civ.P. 56(e) that the party opposing summary judgment must set forth specific facts demonstrating that a genuine issue of material fact exists." McPartland v. American Broadcasting Companies, Inc., 623 F. Supp. 1334, 1339 (S.D.N.Y. 1985) (citations omitted); see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 1997 U.S. App. LEXIS 5785, 1997 WL 162695 (2d Cir. 1997) (mere allegation of existence of ongoing policy of discrimination insufficient to avoid summary judgment); Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994) (continuing violation requires "proof of specific ongoing discriminatory policies or practices"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (conclusory allegations of religious discrimination insufficient to defeat summary judgment).
Further, Samimy identifies no "specific and related instances of discrimination [that were] permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice . . . ." See Cornwell v. Robinson, 23 F.3d at 704. Indeed, it is well-settled that the kind of discrete, completed acts complained of by Samimy -- demotion, lack of promotion and termination -- cannot form the basis of a continuing violation claim. See e.g., Lightfoot, 110 F.3d 898, 1997 U.S. App. LEXIS 5785, 1997 WL 162695; Choi v. Chemical Bank, 939 F. Supp. 304, 311 (S.D.N.Y. 1996) (discrete instances of non-promotion); LaBeach v. Nestle Co., Inc., 658 F. Supp. at 688 (demotion); McPartland, 623 F. Supp. at 1338 (termination); Malarkey v. Texaco, Inc., 559 F. Supp. 117, 121 (S.D.N.Y. 1982) (demotion). Thus, Samimy has failed to establish a "continuing violation" and the alleged acts of discrimination that occurred outside the 300-day period are time-barred.
III. Samimy's Claim Of National Origin Discrimination
Regardless of the procedural and pleading errors discussed above, Samimy's complaint must be dismissed on the merits. There is simply no evidence that race or national origin was a motivating factor in any of the employment decisions about which Samimy now complains.
A. Samimy's Prima Facie Case
A claim of national origin discrimination must be examined under the now familiar burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993).
To establish a prima facie case, a plaintiff employee must show that: (1) he was a member of a protected group; (2) he was performing his duties in a satisfactory manner; (3) he suffered an adverse employment decision; and (4) the adverse decision was made under circumstances giving rise to a reasonable inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 253. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Burdine, 450 U.S. at 254.
If the plaintiff makes a satisfactory showing, the burden then shifts to the defendant employer to articulate a legitimate nondiscriminatory reason for its conduct. Id. If the defendant satisfies its burden, through the admission of competent evidence, the presumption of discrimination is rebutted. The plaintiff must then demonstrate that the proffered reason is merely pretextual. 450 U.S. at 255-256. Thus, the plaintiff retains the ultimate burden of persuasion. Id. at 256.
In the instant case, Samimy contends that throughout his employment with Cornell he was the victim of discrimination based upon his national origin -- he is Iranian.
As previously indicated, much of the complained-of conduct is no longer actionable. The only potentially surviving claims relate to his alleged demotion and termination.
Samimy argues that he was effectively demoted to the position of Research Support Specialist and was ultimately terminated. The record indicates, however, that although Samimy was placed in a position originally designated for a Research Support Specialist, he retained his rank as a Research Assistant (including the attendant salary) until the expiration of his final appointment. Further, he was never fired; his appointment was simply not renewed.
Faced with a motion for summary judgment, Samimy was required to come forward with competent, admissible evidence that he was treated unfairly due to his national origin. Proof of discriminatory motive is critical . . . . Zahorik v. Cornell University, 729 F.2d 85, 91 (2d Cir. 1984), quoting International Bhd. Of Teamsters v. United States, 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). The only "evidence" offered in this regard is a 1983 memo which Samimy asserts contains racial insults. There, his supervisor states:
it appears to me that you have a communications gap with the seed analysts, you have difficulty accepting the degree of independence that women have in our society, and you are reluctant to do physical labor, and you are extremely frustrated because you can't spend 100% of your time in research.
(Cornell Exhibits, Exhibit 11 at p. 200106.) Samimy's contention that the memo evidences discriminatory intent is without any objective basis. No reference to Samimy's national origin is made in the memo whatsoever. The memo deals with Samimy's lack of performance and his problems with female employees. Furthermore, Samimy fails to point to any other alleged instance of racial or ethnic slurs during the length of his employment with Cornell -- sixteen years. Further, he has failed to provide any evidence (statistical or otherwise) that other similarly situated individuals received more favorable treatment.
Samimy offers only the conclusory allegation that, there being no other reasonable explanation for his treatment, he must have been the victim of discrimination. However, "[to allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases." Meiri v. Dacon, 759 F.2d at 998. Such a result cannot be countenanced.
In any event, even assuming arguendo that Samimy has met his prima facie burden, as set forth below, Cornell has presented legitimate non-discriminatory reasons for its actions which Samimy has failed to show are pretextual.
B. Cornell's Defense
To refute any inference of discrimination, a Title VII defendant need only "articulate -- but not prove -- a legitimate, nondiscriminatory reason" for its employment decisions. Dister v. Continental Group, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988), citing Burdine, 450 U.S. at 254-56. The burden then shifts to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason is untrue, or more likely motivated by discriminatory intent. Burdine, 450 U.S. at 256; Dister, 859 F.2d at 1115.
As a preliminary matter, although the questions of Samimy's demotion and termination were not technically tenure decisions, they involved many of the same factors unique to the university setting. A comparison is therefore appropriate. See Coser v. Moore, 739 F.2d 746 (2d Cir. 1984) (review of hiring and promotion practices for academic and nonacademic professionals at SUNY subject to identical level of scrutiny).
Employment decisions regarding university professionals (as opposed to factory workers, or other positions requiring only general skills), necessarily involve subjective determinations. See Zahorik v. Cornell University, 729 F.2d at 92-93. Absent evidence of improper considerations, "universities are free to establish departmental priorities, to set their own required levels of academic potential and achievement and to act upon the good faith judgments of their departmental faculties or reviewing authorities." Id. at 94. Moreover, courts are "understandably reluctant" to substitute their judgments for that of the party best able to determine a candidate's suitability -- the college or university itself. Id. at 93.
In the instant case, Cornell contends Samimy was never demoted and retained his Research Associate classification and pay scale until the expiration of his final appointment. Cornell admits, however, that Samimy was working under Bjorkman in the capacity of a Research Support Specialist, a lower-ranking position.
It contends this move was necessary to ensure continued employment for Samimy at that time.
It is clear that the department's various research projects, and in turn, the Research Associates' and Support Specialists' employment, were dependent on continued funding (whether from internal or external sources.) (See Samimy Exhibits, Exhibits O, DD; Cornell Exhibits, Exhibits 5, 11 at pp. 200102, 200097.) Several documents submitted by Samimy evidence the fiscal difficulties experienced by the Horticultural Sciences Department during the course of his employment there. (See Samimy Exhibits, Exhibits J, X, HH.) Against this background, Cornell offers the explanation that Samimy was paired with Bjorkman because Samimy's own project was scheduled for termination and Bjorkman needed technical support.
(See Samimy Exhibits, Exhibit G at p. 29.)
In sharp contrast, Samimy has failed to present any evidence that Cornell's proffered explanation is pretextual. In order to fulfill his evidentiary burden, he is required to show that the alleged demotion resulted from more than a "disagreement about the scholarly merits of . . . [his] academic work, [his] . . . teaching abilities or the academic needs of the department or university." See Zahorik, 729 F.2d at 94. He was required to provide at least some evidence that the decision was "influenced by forbidden considerations." Id. He has failed to do so.
Cornell further argues that it had good reason for its decision not to renew Samimy's appointment. In May 1994, Samimy sent an allegedly unauthorized letter to the sponsors of the buckwheat project announcing a breakthrough in their research. Bjorkman testified in his deposition that he did not approve the letter and that his name was included in the announcement without his consent. Bjorkman admitted that the announcement was factually correct -- they had successfully produced a hybridized buckwheat plant. However, Bjorkman testified that the announcement was misleading because a reader could infer that hybrid seeds were now available. In fact, Bjorkman claims to have received some requests for the new seeds and/or information confirming their availability. Bjorkman contends he was forced to concede that there were no seeds available. Ultimately, the plant failed to produce any seeds.
Samimy contends that his unauthorized announcement caused no harm, that no one informed him that his actions were inappropriate, and that nothing was placed in his file regarding the incident until October 17, 1994, following a second controversial disclosure by Samimy.
On September 19, 1994, Samimy sent another letter to the sponsors of the buckwheat program. There, he indicated that the department's decision to terminate the buckwheat project affected his own position. He states:
. . . I will be offered another position at a lower rank but [sic] still be working for Dr. Bjorkman in the area of vegetable physiology. This position seems to be more secure than depending on buckwheat funds which, if you would approve, will be for one year. Unless the department would keep its promise and the aforementioned job is still offered to me in 1996, I will not be able to continue on [sic] buckwheat project in 1995 and have to accept what has been offered to me.