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November 7, 2001


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 President.

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 for reappointment.

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 recommendation.

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, concluding:

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.


a. Summary Judgement

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):

Title VII suits fall into two basic categories: "single issue motivation" and "dual issue motivation" cases. In single issue motivation cases, the single issue [is] whether an impermissible reason motivated the adverse action, under the framework first set forth in McDonnell Douglas Corp. v. Green. In dual issue motivation cases, the determination involves both the issue of whether the plaintiff has proved that an impermissible reason motivated the adverse action and the additional issue of whether the defendant has proved that it would have taken the same action for a permissible reason which is analyzed under the framework set forth in Price Waterhouse v. Hopkins.

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 ...

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