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JALAL v. COLUMBIA UNIV. IN NEW YORK

March 9, 1998

AYESHA JALAL, Plaintiff, against COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Defendant.


The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Title VII of the Civil Rights Act of 1964 does not appear, on its face, to be a particularly complex statute. The application of its seemingly straightforward mandate, however, has proven in many cases to be fiendishly difficult: Unearthing invidious discrimination in the workplace, for instance, without abridging an employer's right to make its own employment decisions or deterring debate on controversial subjects often requires courts and juries to make extremely careful judgments.

 The present case exhibits many of the characteristics that make Title VII cases so troublesome: a highly subjective employment decision of debatable wisdom, the involvement of many people in a multi-stage decisionmaking process, and evidence of bias that is undeniably thin, but nevertheless suggestive. *fn1" The paramount problem presented by this case stems from the difficulty of distinguishing items of evidence -- particularly ambiguous statements made by decisionmakers -- that support a permissible inference of bias from those that merely provide grounds for speculation. The trier of fact is ultimately charged with the responsibility for deciding which is which. At the summary judgment stage, however, the court must also engage in this exercise to determine whether there is sufficient evidence to support a rational jury verdict for the plaintiff. While this evidence may include inferences drawn from other facts, it cannot include mere speculation inspired by those facts. This decision addresses the often subtle distinction between the two.

 Plaintiff Ayesha Jalal ("Jalal") filed a Complaint on July 10, 1996, asserting that defendant Columbia University ("Columbia") unlawfully discriminated against her based on her national origin and religion. *fn2" A history professor of international repute, plaintiff claims that Columbia's decision to deny her tenure was based on a discriminatory motive. Plaintiff further contends that Columbia retaliated against her for raising her claim of bias by refusing to reconsider its decision. Defendant now moves for summary judgment pursuant to Fed.R.Civ.P. 56(b). For the reasons stated below, defendant's motion is granted.

 I. Factual Background

 A. Jalal's Background, Hiring and Departmental Tenure Review

 Except as otherwise indicated, the following facts are undisputed. Jalal was born and raised in Pakistan and has been a practicing Muslim from childhood. See Affidavit of Ayesha Jalal ("Jalal Aff.") at PP 2-3. She was hired by Columbia as an associate professor of history in 1991. See id. at P 1. In 1993, Columbia's history department began the process of reviewing Jalal for tenure; in early 1994, this process was suspended, purportedly for financial reasons. See id. at PP 12-17. It began again in the 1994-95 academic year. See Jalal Aff., Ex. 2 at 72.

 After a review of Jalal's publications and referee letters, the History Department Personnel Committee met on January 20, 1995, and voted unanimously in favor of recommending her for tenure. See id. at 73. This recommendation was seconded five days later by an almost unanimous vote of the tenured members of the department as a whole. See id. Jalal's candidacy then moved to the next stage, review by a non-departmental ad hoc committee.

 B. Selection of Jalal's Ad Hoc Committee

 Ad hoc committees consist of five tenured members of the Columbia faculty, one of whom serves as chair. See Affidavit of Patricia Sachs Catapano ("Catapano Aff."), Columbia Associate General Counsel, Ex. 2 at 548. The vote of the ad hoc committee is communicated to the Provost, who makes the final tenure decision, subject to limited review by the University President. See id. at 550. In theory, the Provost may disregard the recommendation of the ad hoc committee, regardless of the outcome of the vote. See id. In practice, however, a unanimous or four to one vote by the ad hoc committee is determinative. See Defendant's Statement Pursuant to Local Civil Rule 56.1 ( "Def's 56.1") at P 4; Plaintiff's Statement Pursuant to Local Civil Rule 56.1 ("Pl's 56.1") at P 4.

 The membership of a candidate's ad hoc committee is determined by the Provost in consultation with a body called the Tenure Review Advisory Committee ("TRAC"). See id. TRAC makes its ad hoc recommendations with regard to the following principles: 1) Departmental diversity on an ad hoc committee is desirable, though not necessary, 2) faculty from a candidate's department are ineligible for that person's committee, 3) faculty with other significant administrative responsibilities should be avoided, and 4) the faculty chosen should be capable of making an informed, independent review of the candidate's qualifications. See Deposition of Stephen Alan Rittenberg, Columbia Vice Provost for Academic Administration ("Rittenberg Dep.") at 82-84. TRAC consists of the Vice President for Arts and Sciences, the Vice President for Health Sciences, the Dean of the Graduate School of Arts and Sciences and four members of the tenured faculty selected by the Provost. See id.

 For tenure candidates in the arts and sciences, the TRAC process is initiated by the Vice President for Arts and Sciences, who recommends a number of faculty as potential ad hoc committee members. See id. at 70-71. Vice President Steven Marcus performed this task with regard to the Jalal ad hoc. See Deposition of Jonathan Cole, Columbia Provost ("Cole Dep.") at 38. TRAC documents from January, 1994 to October, 1996 list eleven people under the heading "DEAN's/VP's RECOMMENDATION," including four who ultimately served: Elaine Combs-Schilling of the anthropology department, Helen Milner and Gerald Curtis of the political science department and Harrison White of the sociology department. See Catapano Aff. at Ex. 5; Affidavit of Debra L. Raskin, plaintiff's attorney ("Raskin Aff.") at Ex. 13. TRAC then had a series of meetings to consider these recommendations and make its own. See Rittenberg Dep. at 134. It ultimately recommended Curtis, Combs-Schilling, Akeel Bilgrami of the philosophy department, Madeline Zelin of the East Asian languages and cultures department and Indian-born economist Padma Desai. See Catapano Aff. at Ex. 5. The Provost, Jonathan Cole, chose Desai, Combs-Schilling, Curtis, Milner and White, with Desai as chair. See Jalal Aff., Ex. 2 at 2; Cole Dep. at 33. It is not clear who originally proposed Desai as a committee member. Vice Provost Alan Rittenberg has testified that he initially raised her name in a conversation with TRAC member Jagdish Bhagwati, Desai's husband. See Rittenberg Dep. at 124-25. Bhagwati agrees. See Deposition of Jagdish Bhagwati ( "Bhagwati Dep.") at 129. However, Cole testified that Desai was suggested by a member of TRAC. See Cole Dep. at 65. While Rittenberg sometimes attended TRAC meetings, see Cole Dep. at 41, he is not a member. See Jalal Aff., Ex. 2 at 2. It was Cole who suggested that Desai serve as chair. See Pl's 56.1 at P 6(b); Bhagwati Dep. at 128.

 C. Evidence of Bias in TRAC Proceedings

 Jalal concedes that there is no evidence to suggest that the subject of her national origin or religion was discussed at any TRAC meeting. See Def's 56.1 at P 6(a); Pl's 56.1 at P 6(a). However, she contends that bias nevertheless played a role in the TRAC proceedings via the participation of Bhagwati and Cole.

 1. Bhagwati

 Jalal asserts that Bhagwati, who is of Indian origin, demonstrated discriminatory animus towards Pakistanis and/or Muslims when he allegedly said, "you can't expect a Pakistani to teach the history of India" to a colleague sometime in the 1994-95 academic year. Deposition of Leonard Gordon, professor, City University of New York ("Gordon Dep.") at 64. Jalal also contends that Bhagwati displayed bias by stating to a graduate student who studied under Jalal: "I hear your professor is being denied tenure" with a "huge smile on his face" shortly after Jalal's candidacy had been put on hold in early 1994. See Deposition of Mridu Rai ("Rai Dep.") at 138-39.

 Jalal does not, however, allege that Bhagwati had any direct input into the decision to deny her tenure; his purported bias could only have had an effect through TRAC's suggestion of biased ad hoc committee members. *fn3" There is little specific evidence tying any act of Bhagwati to any particular TRAC recommendation, though it is undisputed that he participated in TRAC meetings. Jalal suggests that he may have played a more significant decisionmaking role with regard to her ad hoc than other committee members in that he was the only social scientist on TRAC at the time. See Cole Dep. at 50-52, 43 ("Those members of TRAC who have expertise in an area tend to be greater contributors to candidates in their own areas or related areas."). Jalal also points to Bhagwati's testimony indicating that he may have opposed the selection of Bilgrami (a Muslim), on the grounds that Bilgrami is a philosopher rather than a social scientist. See Bhagwati Dep. at 123-27. On the other hand, TRAC did in fact recommend Bilgrami -- whether or not over Bhagwati's objection -- although he was not ultimately chosen by Cole. See Catapano Aff., Ex. 5. Moreover, there is uncontradicted testimony that Bhagwati refrained from speaking on the subject of Desai's selection. See Bhagwati Dep. at 129. Nevertheless, according to Jalal, Bhagwati's influence in TRAC led to the appointment of two members of her ad hoc, Desai and White, who she believes were biased against her because of her national origin and religion. *fn4"

 2. Cole

 Jalal does not proffer any direct evidence of bias on the part of Cole. She suggests instead that bias can be inferred from the fact that he was warned about the potential impact of ethnic hostility on the Jalal tenure candidacy and did nothing to eliminate it. Then-History Department Chairman William Harris *fn5" spoke to Cole in the spring of 1994, and asked him to "take note of the ethnic sensitivities that existed on the subject," specifically hostility between Indians and Pakistanis. Deposition of William Vernon Harris ("Harris Dep.") at 119, 122. Harris made this request after having been informed by Jalal that either Bhagwati or Desai had made arguably discriminatory comments in a conversation with a graduate student. *fn6" Harris did not, however, relate to Cole the basis for the request. See id. at 113-19.

 Rittenberg testified that after the ad hoc had met, Harris told him that Desai had been named in Harris's conversation with Cole as an example of a person whose objectivity was questionable. See Rittenberg Dep. at 179-181. According to Gordon and Jalal, Harris told them the same thing. See Gordon Dep. at 28-29; Jalal Aff. at P 28. Tufts professor Sugata Bose alleges that in a conversation with Bilgrami, Bilgrami suggested that Cole had admitted that he may have been warned about Desai before she was selected to the committee. See Affidavit of Sugata Bose ("Bose Aff.") at P 5. While Cole was in theory the person who made the final decision to deny her tenure, Jalal admits that, in reality, the decision is left to the ad hoc committee. See Def's 56.1 at P 4; Pl's 56.1 at P 4. Thus, her allegations regarding Cole require an inference that Cole's bias was expressed through his selection of Desai and White for the ad hoc committee. *fn7"

 D. Evidence of Bias on the Part of Ad Hoc Committee Members

 As to Desai, Jalal asserts that she exhibited bias in a conversation she had with one of Jalal's graduate students in early 1994. Desai is alleged to have asked the student, also a woman of Indian origin, how she felt about working with a Pakistani. When the student responded that Jalal's nationality made no difference to her, Desai allegedly responded, "No, but I have heard that she holds and expresses distinctly anti-Indian views," and refused to be dissuaded from this position. See Deposition of Mridu Rai at 118-19. Jalal also points to a portion of Desai's testimony in which she recalled that thirty years earlier she had been passed over for promotion at the Delhi School of Economics in favor of a less qualified man. See Deposition of Padma Desai ("Desai Dep.") at 599-601. In recounting this story, Desai mentioned that the man who received the promotion was a Muslim, though she said that this was irrelevant to the decision. See id. at 601.

 As to White, Jalal asserts that his comments during the ad hoc meeting betray bias. Notes of the meeting show that he compared Jalal's work to that of a "White" Russian studying Soviet history or a "Vermont historian . . . talking in favor of the Confederacy." See Raskin Aff., Ex. 14 at 646. At deposition, he explained that these analogies were meant to express his characterization of Jalal as a revisionist historian; i.e., his belief that her views on particular historical events -- particularly the creation of Pakistan as an independent nation -- are in conflict with historical ideas that are widely accepted in Pakistan. See Deposition of Harrison C. White ("White Dep.") at 201-03. In this context, he also testified that, "It would be hard for me to imagine Professor Jalal happily going back to Pakistan and making her career there." See id. at 203.

 E. Preparation for the Jalal Ad Hoc Committee Meeting

 Each ad hoc committee member reviewed Jalal's work in preparation for their meeting. Given Jalal's theory that the bias of Desai and White infected the decision of the committee as a whole, a member-by-member review of this preparation is warranted.

 1. Combs-Schillng

 Combs-Schilling took a week off from her regular duties to read Jalal's three books and numerous articles. See Deposition of M. Elaine Combs-Schilling ("Combs-Schilling Dep.") at 112. At the end of this process, she had decided to vote against tenure based on her assessment that Jalal's recent work was neither particularly original nor well-researched. See id. at 118-121. She spoke with Desai once or twice before the ad hoc meeting, but nothing ...


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