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GIRMA v. SKIDMORE COLLEGE
November 7, 2001
PAUL B. GIRMA, PLAINTIFF,
SKIDMORE COLLEGE, DEFENDANT.
The opinion of the court was delivered by: McAVOY, District Judge.
Plaintiff Paul B. Girma ("Girma" or "Plaintiff"), an
African-America male of Ethiopian national origin born in 1951,
commenced the instant litigation pursuant to Title VII of the
Civil rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et.
seq., the Age Discrimination and Employment Act ("ADEA"),
29 U.S.C. § 621, and the New York State Human Rights Law, N.Y.
Exec. Law § 296 et. seq. ("NYHRL") alleging that he was denied
reappointment as an assistant professor at Skidmore College
("Skidmore" or "the College" or "Defendant") based upon his
race, national origin, and age. Presently before the Court is
Defendant's Motion for Summary Judgment pursuant to FED. R. CIV.
P. 56 seeking dismissal of the complaint in its entirety.
Inasmuch as this is a motion for summary judgment by
Defendant, the following facts are presented in the light most
favorable to Plaintiff. See Ertman v. United States,
165 F.3d 204, 206 (2d Cir. 1999). The majority of these facts are taken
from the parties' Local Rule 7.1 Statements.
In the Fall of 1996, Plaintiff was hired by Skidmore in a
tenure track teaching position in the Defendant's Department of
Business ("DOB"). Girma, who holds a Ph.D. in finance, taught
courses at Skidmore in investment, finance, and introduction to
business. Girma's initial contract was for three years, ending
after the Spring of 1999 semester.
Skidmore has an established procedure whereby tenure track
professors are evaluated to determine whether the College will
extend an offer for a second three-year contract (referred to by
the parties as "reappointment"). The evaluation procedure allows
the faculty of the department in which the candidate teaches,
during the candidate's second year, to submit comments to the
department's Personnel Committee on whether the candidate should
be considered for reappointment the following year (the third
year). In this case, it was the consensus of the DOB faculty
that Girma should stand for review in his third year (the Fall
of 1998). These faculty comments were very favorable of Girma's
chances for reappointment.
Skidmore's procedure for reappointment is set forth in the
College's Faculty Handbook*fn1 and uses a criteria which
evaluates performance in three categories: teaching excellence,
scholarship, and service to the college community. The Faculty
Handbook indicates that teaching ability is the most important
criterion for reappointment.
The reappointment procedure allows each department's personnel
committee to conduct this evaluation using the stated criteria
(discussed more fully below). The personnel committee then
reports its recommendation to the department chairperson,
stating its reasons therefore, and providing to the chairperson
the materials upon which the committee based its recommendation.
The department chairperson considers the same material as the
personnel committee, formulates his/her own recommendation, and
then forwards both recommendations (and any attendant materials)
to the Dean of Faculty. The Dean of Faculty, in turn, reviews
the material and makes his/her own recommendation to the College
President who makes the final decision whether to grant
reappointment. Here, the DOB Personnel Committee consisted of
Associate Professors Betty V. Balevic, Martin J. Canavan, and
Mary E. Correa. Professor Roy Rotheim was the DOB Chair, Susan
Bender was Acting Dean of Faculty, and Phyllis Roth was Interim
In the Fall of 1998, the Department of Business considered the
reappointment of three candidates: Girma, Eric Lewis, and James
Kennelly. At least one other professor from the department, Gary
McClure, was considered for tenure (which is determined by a
interdepartmental tenure committee with faculty comment taken
from the DOB faculty and chairperson). Kennelly is approximately
the same age as Plaintiff. McClure was in his mid-60s in 1998.
Lewis, Kennelly, and McClure are Caucasian.
In conducting the evaluations for reappointment, the personnel
committees of each department in the College rely upon, inter
alia, student evaluations of the candidate. These student
evaluations are reported in a "long form evaluation" and a
"short form evaluation." Both of these evaluations (long
form/short form) are taken from a form completed by the students
themselves. On the front of this form the students give the
faculty member a rating from "excellent" to "poor" on separate
aspects of the professor's teaching performance (e.g.,
preparation for class, mastery of material, etc.). On the back
of this same form, students are allowed to give a longer
narrative commentary on certain aspects of the class (such as
positive and negative aspects of the course, whether the writer
would recommend the class to friend, etc.). The ratings that are
reported on the front of the form are tabulated by the College
using numerical equivalents for the rankings, giving the
professor a score from 1.0 (poor) to 5.0 (excellent) in each
area. The scores in each class are combined and averaged for a
class score; class scores can be averaged for a semester score;
and semester scores can be averaged for an overall score. These
scores are referred to as the "short form" evaluations and the
narrative as the "long form" evaluations. Skidmore considers an
overall short form score below 4.0 to be below its requirement
At the time of Girma's consideration for reappointment, the
DOB Personnel Committee had access to Girma's short and long
form evaluations from the Fall of 1996 through the Fall of 1998
semesters. Apparently because the long forms are handwritten
which could identify the authors, each faculty member is
provided with the evaluations after the professor submits
student grades for each semester. In the Fall of 1998, in order
to facilitate a timely determination by the DOB Personnel
Committee, that committee asked the candidates to sign a release
allowing the committee to access the evaluations before the
grades were submitted (and, therefore, before the candidates saw
the evaluations). Girma agreed and signed this release.
The majority of Girma's short form scores while he was at
Skidmore were below 4.0, with some significantly below this
level. The long form evaluations were somewhat mixed with the
majority of the students expressing both frustration and
negativity with Girma's teaching style citing his inability to
support the students' needs and respond adequately to their
questions during classes. Few of the students indicated they
would recommend Plaintiffs classes to their friends.
During Girma's second year, he was counseled by Professor
Rotheim regarding the importance of his short form scores and
was advised of the impact these scores would have on his
eventual bid for reappointment. Overall, Plaintiffs short form
scores demonstrated an improvement during the Spring of 1998
semester from the dismally low initial scores he received when
he first arrived at Skidmore. When Plaintiffs short form scores
showed this improvement, professors in the department, including
Professor Balvic, expressed optimism that he was on upward trend
in this area which would positively effect his bid for
reappointment. Unfortunately, Girma's Fall of 1998 semester
short form scores indicated a dip back to the below-par range.
This, in turn, caused many professors, including Professor
Balvic, to lose confidence that Girma could meet Skidmore's
teaching expectations. As indicated below, these scores (as well
as the long form evaluations) played a decisive role in each
Through the evaluation procedure, the DOB Personnel Committee
also solicited and received faculty letters commenting on
Girma's reappointment, some of which remarked favorably on his
teaching ability and virtually all of which remarked favorably
on his intellect and scholarship. Despite Girma's contention to
the contrary, the procedure in effect did not require Defendant
to obtain recommendations from all eligible professors nor did
it require the relevant recommenders (DOB Personnel Committee,
Chairperson, Dean of Faculty) to make a recommendation based
upon a majority vote of the department faculty. Rather, faculty
comment was one of the several modes of input into the process
but the procedure clearly allowed each recommender to place
primary emphasis on teaching ability as reflected by the student
evaluations. Consequently, when faced by poor teaching
evaluation the committee could vote against
reappointment even if a majority (or even all) of the faculty
members supported the opposite result.
Here, that was the case. The DOB Personnel Committee
unanimously recommended that Girma not be reappointed. In
reaching this conclusion, the Personnel Committee cited a "very
mixed record across the areas of teaching, scholarship and
community service" but concluded that despite "some real
strengths, his weakness in teaching (teaching being a principal
criterion for continued service at Skidmore), make us unable to
recommend him for reappointment." DOB Personnel Committee
recommendation to Prof. Rotheim, December 14, 1998.
In a relatively lengthy recommendation letter to Acting Dean
of Faculty Bender dated January 5, 1999, Professor Rotheim
reviewed: (a) the procedure employed by the DOB Personnel
Committee, (b) the DOB Personnel Committee's recommendation, (c)
Girma's teaching abilities as reflected by the students in the
long and short form evaluations, and (c) the efforts made to
assist Girma in improving his teaching skills. Rotheim
reluctantly and apologetically concurred in the Personnel
Committee's recommendation not to offer reappointment,
So at the end of the day, I find it is impossible to
recommend Professor Paul Girma for another 3-year
appointment in the College. He is an extremely
promising scholar, but his classroom performance
. . . is causing students distress and, from what I
can tell by reading his evaluations, is causing them
to learn less than might be the case had they had a
different classroom experience. As such, and despite
his knowledgeability [sic] in his field and the high
standards and expectations which imbue his courses,
the Department of Business is forced to recommend
. . . that [he] not be reappointed in the College.
I would like to add that I personally find the task
of conveying this negative recommendation quite
regrettable and saddening. I have come to know Paul
Girma well these last three years . . . and have
grown to admire and respect him as a colleague and a
scholar. From a personal perspective, I am very sorry
this appointment is not working out.
Rotheim recommendation to Bender, Jan. 5, 1999.
Acting Dean Bender concurred with the Personnel Committee's
and the Chairperson's recommendations, and, also relying
strongly on Girma's poor teaching evaluations, recommended
against reappointment. The College's Interim President accepted
these recommendations and, on February 26, 1999, Girma was
notified that his candidacy for a second three-year term was
unsuccessful and that his employment would terminate after the
1999-2000 academic year. Professors Kennelly and Lewis were
reappointed. Professor McClure was granted tenure. On August 12,
1999, Dr. Girma submitted his letter of resignation, effective
September 1, 1999. This litigation ensued thereafter.
It is well settled that on a motion for summary judgment, the
Court must construe the evidence in the light most favorable to
the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581,
593 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 120 S.Ct.
1832, 146 L.Ed.2d 776 (2000), and may grant summary judgment
only where "there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law." FED. R. Civ. P. 56(c).
The Second Circuit recently cautioned that on a motion for
summary judgment, "especially in the context of a claim of
discrimination, the court should not view the record in
piecemeal fashion." Fitzgerald v. Henderson, 251 F.3d 345, 360
(2d Cir. 2001). The Court is also mindful that where the intent
of one party is in question, as is often the case with
employment discrimination claims, the "court must be cautious
about granting summary judgment." Gallo v. Prudential
Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d
Cir. 1994). However, "[i]t is now beyond cavil that summary
judgment may be appropriate even in the fact-intensive context
of discrimination cases." Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 466 (2d Cir. 2001).
"Even where facts are disputed, in order to defeat summary
judgment, the nonmoving party must offer enough evidence to
enable a reasonable jury to return a verdict in its favor."
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, (2d
Cir. 2001). The "non-moving party may not rely on conclusory
allegations or unsubstantiated speculation." Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998). "The issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974). Consequently, summary judgment, even in a
discrimination case, is granted "[w]here the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986); see Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000) (the
Supreme Court "reiterated that trial courts should not `treat
discrimination differently from other ultimate questions of
fact.'") (quoting St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).
With this standard in mind, the Court turns to the arguments
raised by the parties.
b. "Single Motive" or "Dual Motive" case?
Defendant argues, as discussed below, that Plaintiff cannot
establish a prima facie case of race, national origin, or age
discrimination under the shifting burden standard set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), and its progeny, and, that even if he
can, he cannot establish that the employer's legitimate
non-discriminatory reasons for the employment decision are a
pre-text for discrimination. Plaintiff responds by arguing that
this, is not a case to be analyzed under McDonnell Douglas
Corp. v. Green, but rather a dual motive case to be analyzed
under the standard set forth by Price Waterhouse v. Hopkins,
490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)
(plurality opinion), and its progeny. See Rose v. NYC Bd. of
Educ., 257 F.3d 156, 161 (2d Cir. 2001) (the Price Waterhouse
framework applies to cases under the ADEA also). Plaintiff
argues that under the latter standard, the burden is on the
defendant to establish that it would have taken the same action
in the absence of discriminatory motives.
As the Second Circuit recognized in Bickerstaff v. Vassar
College, 196 F.3d 435, 445-46 (2d Cir. 1999):
Id. (internal quotations and citations omitted).
A dual motive case generally arises when policy documents or
evidence of statements or actions by decision makers exist that
may be viewed as directly reflecting the alleged discriminatory
attitude, i.e., a "smoking gun." Id. at 446 (internal
quotations and citations omitted). Here, Plaintiff asserts that
this direct evidence of discrimination by decision makers arises
from four sets of circumstances.
The first set of circumstances is a contention that during the
course of three conversations which Plaintiff had with Professor
Rotheim, Rotheim inquired about the ages of Girma and his wife.
Girma provides no further details regarding the content of these
conversations other than to conclude that he (Girma) was "struck
by the fact that . . . Professor Rotheim seemed to want to know
not only my age, but the age of my spouse." Rotheim indicates in
his reply affidavit that the only conceivable situation that he
might have asked Girma for his and his wife's ages was in the
context of a conversation, initiated by Girma, about a personal
problem which Girma and his wife were experiencing in starting a
family. Rotheim asserts, without contradiction, that "to the
extent that such an inquiry could have occurred, it was done as
a sympathetic friend who ...