United States District Court, W.D. New York
February 18, 2004.
CHERIF SADKI, Plaintiff
SUNY COLLEGE AT BROCKPORT, Defendant
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Cherif Sadki, appearing pro se, commenced this action under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Plaintiff, a native of Algeria, is a practicing Muslim and a member of
the Berber ethnic group. In 1998, while he was employed as a visiting
professor at defendant SUNY College at Brockport ("Brockport"), plaintiff
unsuccessfully applied for an assistant professor position in Brockport's
Foreign Languages Department ("the department"). Plaintiff alleges that
the reason that he was not offered that position is that Dr. Patricia
Siegel, the then-acting chair of the department, who allegedly had some
input into the decisionmaking process, harbored discriminatory animus
toward plaintiff on account of his race, national origin, and religion.
Defendant has now moved for summary judgment.
Plaintiff, who speaks both English and French, received a bachelors
degree in education from Algiers University in 1981, and a Ph.D. (with
concentrations in African studies, comparative education, international
studies, and sociology of education) from the State University of New
York at Buffalo in 1994. McLean Decl. (Docket #35), Ex. B. Plaintiff was
a lecturer at Brockport from 1990 until 1993, and a visiting professor
beginning in September 1995. While he was a visiting professor, plaintiff
taught four French courses per semester. Sadki Decl. (Docket #43) ¶
During the 1997-98 academic year, the department conducted a search to
fill the position of Assistant Professor of Foreign Languages/French
("the position"). McLean Decl. ¶ 3. A search committee ("the
committee"), made up of members of the department and one student, was
formed to screen and interview candidates, and to make a recommendation
to the Dean of the School of Letters and Sciences, Robert J. McLean,*fn1
as to who should be hired to fill the position. McLean, who was not bound
by the committee's recommendation, McClean Decl. ¶ 4, would in turn
advise Brockport's President, Paul Yu, which candidate McLean believed
should be hired. According to defendants, Yu made the final decision on
whom to hire. McLean Reply Decl. (Docket #46) ¶ 15.
Prior to the commencement of the search, Dr. Elaine Miller, the
then-chair of the department, submitted to McLean a written Request for
Authorization to Search ("search authorization"). The requirements set
forth in the search authorization were:
Ph.D. or equivalent in French/Francophone Studies
or related area. Experience in teaching language.
Commitment to teach language, civilization, and
literature to undergraduate
students. Familiarity with multimedia applications.
Demonstrated ability to conduct and publish scholarly
research. Capacity to function effectively in a
culturally diverse environment.
McLean Decl. Ex. A.
According to McLean, plaintiff did not meet these criteria, because his
Ph.D. was not in "French/Francophone Studies or [a] related area," but
rather in education and other non-French-related areas. McLean also
describes plaintiffs scholarship and research as "minimal." McLean Decl.
McLean adds that he "knew that Dr. Sadki was well-liked in the
Department," and that "there would be many in the Department who would
want to hire him for the French position." McLean Decl. ¶ 6. He
states that he was therefore "surprised when [he] received the
Department's Search Authorization because Dr. Sadki did not meet the
basic, minimum qualifications for the job as described by the
Department." McLean Decl. ¶ 7. He states that "[t]ypically, when a
position is available and an academic department knows of a person they
would like to hire to fill the position, but they are required to conduct
a search, they will tailor the hiring criteria to fit the desired
candidate." McLean Decl. ¶ 9.
In a memorandum dated February 11, 1998, the committee informed McLean
that it had chosen four candidates to invite for on-campus interviews:
Sadki, Giles Carjuzza, Mary Beth Vogl, and Donna Wilkerson. McLean Decl.
Ex. C. As part of the interview process, McLean met with each candidate.
McLean states that in accordance with his usual practice, after he had
spoken with all four candidates, and before receiving the committee's
recommendation, McLean ranked the candidates. According to McLean, his
rankings, from highest to lowest, were: Wilkerson, Vogl, Carjuzza, and
Sadki. McLean Decl. ¶ 14.
In early March 1998, the committee sent its written recommendations to
McLean. Although the committee did not expressly rank the candidates, it
is clear that they preferred Sadki over the other three. Their comments
about Sadki included the following: "Dr. Sadki has demonstrated
excellence in teaching as well as outstanding service to the department,
the college, and the community"; "[s]tudent evaluation of his teaching
ranges from very good to excellent"; "[p]eer evaluations through
classroom observations are also extremely favorable"; and a number of
other very positive, if not glowing, assessments of Sadki's abilities.
McLean Decl. Ex. D.
The only negative comment made by the committee about Sadki was that
his "accomplishments in scholarship have not been strong up to this
point." The committee suggested, however, that this was understandable in
light of the facts that Sadki had only recently received his Ph.D., and
that he had been teaching four courses per semester since September 1995.
The committee also noted that Sadki was working on a book on African
education, and added that "[h]is expertise in French/Francophone
literature and culture will enable him to carry out relevant research in
those areas." At any rate, the committee clearly did not consider Sadki's
limited research up to that point to be a serious problem or impediment
to his candidacy, since it concluded that he would be "a perfect fit" for
The committee also indicated that it considered Wilkerson to be an
acceptable candidate. It stated that although Wilkerson had not yet
received her Ph.D. in French, she was scheduled to defend her
dissertation in June 1998. Otherwise, the committee's comments about her
were favorable, and the committee concluded that she "would be a good
fit" for the department, but the overall tone of the memorandum
suggests, and indeed defendant does not deny, that the committee's first
choice for the position was Sadki.
The committee's recommendations notwithstanding, McLean states that he
remained convinced that Sadki did not meet the minimum requirements for
the position. In reaching that conclusion, he states that he was also
influenced by a conversation that he had with President Yu earlier that
year in which Yu stressed the importance to him of making high-quality
faculty appointments. McLean states that he knew that Sadki "was not the
kind of appointment President Yu would want to make" because of Sadki's
lack of qualifications for the position. McLean Decl. ¶ 19.
McLean states that he "knew that the members of the Search Committee
would not be pleased with a decision not to hire Dr. Sadki," however,
McLean Decl. ¶ 19, so he decided to obtain input from two other deans
and an associate dean at Brockport. He gave each of them Sadki's and
Wilkerson's curricula vitae ("CVs") as well as the position criteria and
requirements, and asked for their opinions. McLean states that all three
deans thought that Wilkerson was qualified, but that Sadki was not.
McLean Decl. ¶ 20.
McLean also states that "[a]t some time," though he does not say
exactly when, he "did become aware that Dr. Siegel shared [McLean's]
opinion that Dr. Sadki did not meet the minimum qualifications for the
French position." McLean Decl. ¶ 24. McLean states, however, that
Siegel never said anything to him about Sadki's race, religion or
national origin, that McLean had already ranked the candidates (with
Sadki lowest) when he talked with Siegel, and that her assessment of
Sadki had no impact on McLean's decision not to recommend to President Yu
that Sadki be chosen for the position. McLean Decl. ¶¶ 25, 26.
In a memorandum dated March 6, 1998, McLean recommended to President Yu
that Wilkerson be chosen for the position. McLean Decl. Ex. F. Along with
the memo, McLean sent
Yu the committee's recommendations, and Sadki's and Wilkerson's CVs. He
stated that "[t]he department met with [McLean on March 6] to express
their strong support for Sadki," who was "their top choice." McLean
added, "My problem [with Sadki] is that I don't believe he meets the
minimum qualifications according to their initial screening checklist."
McLean also told Yu that the other deans whose opinions he had solicited
thought that Wilkerson, but not Sadki, was qualified for the position.
McLean said that "[t]he department made arguments that Sadki did meet the
qualifications, by extended interpretation of the requirements, although
some admitted that he would have rated in the "C" category if they did
not know him."*fn2 McLean concluded, "I remain unconvinced that he
should be offered the position." After reading McLean's comments,
President Yu hand-wrote, "I agree with your analysis" at the bottom.
Wilkerson was then offered the position, which she accepted. At some
point thereafter, Sadki left his employment at Brockport.
Plaintiff filed a complaint against Brockport with the New York State
Division of Human Rights ("DHR") on April 3, 1998, alleging that he had
been discriminated against on account of his age, creed, national origin
and sex. After investigation, the DHR issued a determination on May 19,
1999, in which it concluded that there was probable cause to believe that
Brockport "engaged in or is engaging in the unlawful discriminatory
practice complained of."*fn3
It appears, however, that the DHR actually found probable cause only
with respect to plaintiffs allegations of discrimination on the basis of
his national origin and creed. Attached to the probable-cause finding was
a DHR internal memorandum entitled "Final Investigation Report and Basis
of Determination," ("report") dated April 22, 1999, in which the DHR
investigator concluded that "[t]here [wa]s sufficient evidence to support
the complainant's allegations that he was not hired for the position
because of his national origin and creed." Report at 4. The investigator
found insufficient evidence to support Sadki's allegations of age and sex
discrimination, however. Report at 2.
In support of this determination, the investigator cited several pieces
of evidence. He stated that other members of the department supported
Sadki's allegation that "Ms. Siegel had greeted the complainant using a
racially insensitive term at a department event." Id. This was an
apparent reference to Sadki's allegation that on one occasion, Siegel had
called out to plaintiff, "Hey, you the Moroccan." See Letter from
plaintiff to DHR dated July 2, 1998 (attached to complaint in this action)
at 3, ¶ 5. Another person told the investigator that she had gone
with Sadki to Brockport's affirmative-action director regarding this
comment, "as well as other inappropriate comments that students had
reported were made to them about [Sadki] by Ms. Siegel." Report at 2.
The report also states that another department member "asserted that
they were of the impression that Ms. Siegel had problems working with
people from other countries, especially Islamic ones. This individual
asserted that although Ms. Siegel runs the cross cultural program, she is
not a very cross cultural person." Id.
The investigator also expressed doubt about Brockport's assertion that
Sadki was not qualified for the position. He noted that the committee
"felt very strongly that [Sadki] was the best qualified candidate for the
The report also states that although Sadki did not allege that McLean
intentionally discriminated against him, Siegel, who opposed Sadki's
candidacy, "discussed her viewpoint with Dean McLean and clearly had
input into the decision." Report at 3. The investigator stated, "In fact,
as the Acting Chair of the department, and as one of only two other
professors who taught French . . ., considerable deference to her opinion
would be expected. However, because of the issues of Ms. Siegel's alleged
hostility to [Sadki], based on his ethnicity, such input is tainted by
discriminatory animus." Id.
The investigator also found it "interesting to note that while Mr.
McLean and Ms. Siegel emphasize [Sadki's] alleged lack of an appropriate
degree, . . . neither of the committee members interviewed recall the
degree issue being raised in their meeting with Mr. McLean regarding his
concerns about [Sadki's] inadequacy," and that although McLean did
discuss Sadki's lack of publications with the committee members, Sadki's
"degree was not raised [by McLean] as a reason for not selecting" Sadki,
which suggested that the issue about the degree might have been an
afterthought on McLean's part. Id. The investigator also noted that the
committee itself apparently considered Sadki's degree to be sufficient,
since it strongly recommended him for the position. He also pointed out
that Wilkerson, the person who was chosen, "did not yet have a
doctorate," and that she had less teaching experience than Sadki. Id.
On September 13, 1999, the Equal Employment Opportunity Commission
("EEOC") issued plaintiff a right-to-sue letter. Plaintiff filed the
complaint in this action on December 9, 1999.
I. General Standards
The standards for deciding summary judgment motions in Title VII and
other discrimination actions, which require application of the three-part
burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973), are well-established. See Weimtock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). In short, plaintiff must
first make out a prima facie case of discrimination by showing that he:
(1) is a member of a protected class; (2) was qualified for the position
at issue; (3) was denied the position; and (4) that the circumstances of
the adverse employment decision give rise to an inference of
discrimination. Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir.
2003). The Court of Appeals for the Second Circuit has "characterized the
evidence necessary to satisfy this initial burden as `minimal' and 'de
minimis.'" Zimmerman v. Associates First Capital Corp., 251 F.3d 376, 381
(2d Cir. 2001) (citations omitted).
Once plaintiff establishes his prima facie case, defendant has the
burden to come forward with a legitimate, nondiscriminatory reason for
not awarding the position to the plaintiff, and the plaintiff has the
ultimate burden of persuading the trier of fact that unlawful
discrimination was the real reason for the denial. James v. New York
Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) (citing St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 507-11 (1993)).
To overcome a well-founded motion for summary judgment in this action,
then, plaintiff must show that there exists a genuine issue of material
fact concerning whether the decision to select someone other than
plaintiff for the position was motivated by discrimination. Fed.R. Civ.
Carlton v. Mystic Transp., Inc., 202 F.3d 129, 132 (2d Cir.), cert.
denied, 530 U.S. 1261 (2001). Plaintiff can do so by presenting
sufficient admissible evidence from which a rational finder of fact could
infer that more likely than not he was the victim of intentional
discrimination. Bickerstaff v. Vassar College, 196 F.3d 435, 447-48 (2d
Cir. 1999), cert. denied, 530 U.S. 1242 (2000). In assessing the record
to determine whether plaintiff has made such a showing, the court
resolves all ambiguities and draws all reasonable factual inferences in
favor of plaintiff, the party opposing the motion. Id. at 448.
II. Title VII and Institutions of Higher Education
While there can be no dispute that Title VII applies to colleges and
universities no less than to other employers, University of Pennsylvania
v. EEOC, 493 U.S. 182, 190-91 (1990); Fisher v. Vassar College,
70 F.3d 1420, 1435 (2d Cir. 1995)), reh'g in banc, 114 F.3d 1332 (2d
Cir. 1997), cert. denied, 522 U.S. 1075 (1998),*fn4 "courts are also
understandably wary of impinging upon the academic freedom of our
institutions of higher learning, an `important part' of which is a
`university's prerogative to determine for itself on academic grounds who
may teach'" within its classrooms and lecture halls. McFadden v. State
University of New York, College at Brockport, 195 F. Supp.2d 436, 446
(W.D.N.Y. 2002).(quoting Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir.
1980) (additional internal quotes omitted)). See also Bickerstaff, 196
F.3d at 455 (a college "alone has the
right to set its own criteria for promotion and then to evaluate a
candidate's fitness for promotion under them").
At the same time, however, the Court must remain mindful that "faculty
votes should not be permitted to camouflage discrimination." Namenwirth
v. Board of Regents, 769 F.2d 1235, 1243 (7th Cir. 1985)), cert. denied,
474 U.S. 1061 (1986). Judicial deference to university
officials'decisions about whom to select for particular faculty
positions, therefore, should not become a "policy of self-abnegation where
colleges are concerned." Powell v. Syracuse Univ., 580 F.2d 1150, 1153
(2d Cir.), cert. denied, 439 U.S. 984 (1978). "In evaluating plaintiff's
claims and defendant's motion, then, the court must strike a balance,
giving proper deference to the informed, good-faith evaluations of
faculty members by their peers, while at the same time leaving fully open
the avenues of relief created by Congress for individuals who have been
discriminated against in their employment." McFadden, 195 F. Supp.2d at
III. Plaintiff's Claims
Applying these standards to the case at bar, I find that plaintiff has
established that there are material issues of fact in this case, and that
defendant's motion for summary judgment must be denied. In particular, I
believe that there is evidence from which the trier of fact could
conclude that: Siegel harbored discriminatory animus toward plaintiff on
account of his race, national origin, or religion; she had significant
input into the decision whether to offer the position to plaintiff;
because of her animus, Siegel recommended that plaintiff not be selected
for the position; and
Siegel's recommendation was a motivating factor in the ultimate decision
not to offer the position to plaintiff.
In support of their motion, defendants argue that Siegel's feelings
toward Sadki are essentially irrelevant, since she was not the one who
decided which candidate to select; McLean made a nonbinding
recommendation to President Yu, who made the final decision. There is
considerable authority, however, from this circuit and others, that the
element of causation i.e., that an adverse employment action was
caused by discrimination can be satisfied by showing that a
person with discriminatory animus toward the plaintiff influenced the
"actual" decisionmaker, even if the latter did not consciously
discriminate against the plaintiff. See, e.g., Rose v. New York City Ed.
of Educ., 257 F.3d 156, 162 (2d Cir. 2001) (discriminatory comments of
plaintiff s supervisor, who did not have formal firing authority but who
"had enormous influence in the decisionmaking process," constituted
direct evidence of discrimination); Griffin v. Washington Convention
Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) ("evidence of a subordinate's
bias is relevant where the ultimate decision maker is not insulated from
the subordinate's influence"); Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 55 (1st Cir. 2000) ("One method [of proving pretext]
is to show that discriminatory comments were made by . . . those in a
position to influence the decisionmaker"); Abramson v. William Paterson
Coll. of New Jersey, 260 F.3d 265, 286 (3d Cir. 2001) ("Under our case
law, it is sufficient if those exhibiting discriminatory animus
influenced or participated in the decision to terminate [the plaintiff]
. . . [because] an evaluation at any level, if based on discrimination,
[may] influence the decisionmaking process and thus allow 
discrimination to infect the ultimate decision") (internal quotations and
citation omitted); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226
(5th Cir. 2000) ("If the [plaintiff] can demonstrate that others had
influence or leverage over the official decisionmaker . . . it is proper
to impute their discriminatory attitudes to the formal decisionmaker");
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th
Cir. 1998) ("[R]emarks by those who did not independently have the
authority . . . to fire the plaintiff, but who nevertheless played a
meaningful role in the decision to terminate the plaintiff, [are]
relevant"); Maarouf v. Walker Mfg. Co., Div. of Tenneco. Automotive,
Inc., 210 F.3d 750, 754 (7th Cir. 2000) (where discriminatory coworker,
by concealing relevant information from the decisionmaking employee or
feeding false information to him, is able to influence the decision
concerning plaintiff, "the discriminatory motive of the other employee,
not the autonomous judgment of the nondiscriminating decision-maker, is
the real cause of the adverse employment action"); Stacks v. Southwestern
Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994)
(discriminatory remarks of a manager, who was the fired plaintiff's
supervisor and who was "closely involved in employment decisions,"
constitute direct evidence of discrimination); Bergene v. Salt River
Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th
Cir. 2001) (manager's comment was direct evidence of retaliation because
"[e]ven if [the] manager was not the ultimate decisionmaker [in denying
the plaintiff a promotion], that manager's retaliatory motive may be
imputed to the company if the manager was involved in the . . .
decision"); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 361
(S.D.N.Y. 1999) ("Although Frier may not have been the person who made
the ultimate decision to fire Weber, a jury could infer from the evidence
that Frier [who had allegedly made discriminatory comments about Weber]
had substantial input in the decision-making process"); Hunt v.
Tektronix, Inc., 952 F. Supp. 998, 1006-07 (W.D.N.Y. 1997) (genuine issue
of material fact existed as to pretext where inference could be drawn
that non-decisionmaker who made discriminatory comments had larger role
in termination than that
alleged by defendant); see also Reeves v. Sanders on Plumbing Products,
Inc., 530 U.S. 133, 141 (2000) ("liability depends on whether the
protected trait . . . actually played a role in [the employer's
decisionmaking] process and had a determinative influence on the
outcome") (quotation marks and citation omitted; emphasis added;
alteration in original); but see Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 289-91 (4th Cir. 2004) (en banc) ("declin[ing]
to endorse a construction of the discrimination statutes that would allow
a biased subordinate who has no supervisory or disciplinary authority and
who does not make the final or formal employment decision to become a
decisionmaker simply because he had a substantial influence on the
ultimate decision or because he has played a role, even a significant
one, in the adverse employment decision") (7-4 decision).
As stated, McLean admits that "[a]t some time," he "did become aware
that Dr. Siegel shared [McLean's] opinion" that Sadki was unqualified for
the position. Although McLean claims that he had already formed that
opinion on his own, with no prior input from Siegel, a jury might well
find otherwise. At this point, it is unclear when McLean and Siegel
talked about plaintiff's qualifications, nor is there proof, aside from
McLean's own statement, of when McLean compiled his ranking of the four
candidates. This matter, then, raises an issue of credibility, which is
for a jury to decide at trial, not for the Court on a motion for summary
judgment. See Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003)
("It is well established that' [c]redibility assessments, choices between
conflicting versions of the events, and the weighing of evidence are
matters for the jury, not for the court on a motion for summary
judgment'") (quoting Fischl v. Armitage, 128 F.3d 50, 55-56 (2d Cir.
Although defendant argues that plaintiff has no proof of any
communications between Siegel and McLean that would tend to cast doubt on
McLean's assertion that Siegel's opinion of plaintiff
had no bearing on his decision to recommend that plaintiff not be
selected, it is clear from McLean's own declaration that he and Siegel
did talk about plaintiff, and that Siegel expressed the opinion that
plaintiff should not be selected for the position. Again, the extent to
which Siegel's opinion influenced McLean's decision about whom to
recommend is for the trier of fact to decide.*fn5 See Long v. Eastfield
College, 88 F.3d 300, 307 (5th Cir. 1996) ("The degree to which [the
ultimate hiring officer]'s decisions were based on his own independent
investigation is a question of fact which has yet to be resolved at the
district court level"); Sparks v. Pilot Freight Carriers, Inc.,
830 F.2d 1554, 1565 (11th Cir. 1987) (reversing district court's grant of
summary judgment for the employer because an issue of material fact
remained as to whether the alleged harasser influenced the decisionmaker
to fire the plaintiff).
Moreover, the Second Circuit has on some occasions noted that "an extra
measure of caution is merited" when deciding whether summary judgment is
proper in a discrimination action because "direct evidence of
discriminatory intent is rare and such intent often must be inferred from
circumstantial evidence found in affidavits and depositions." Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (citing Gallo
v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
Thus, the fact that plaintiff has no direct proof of the substance of any
between McLean and Siegel is hardly surprising. See Garcia v. S. U.N. Y.
Health Sciences Center of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001)
(noting that "smoking guns are rarely left in plain view"); Chertkova v.
Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996) (observing
that "it is rare indeed to find in an employer's records proof that a
personnel decision was made for a discriminatory reason"); Bicherstaff,
196 F.3d at 448 ("courts must `be alert to the fact that [e]mployers are
rarely so cooperative as to include a notation in the personnel file that
the firing is for a reason expressly forbidden by law'") (quoting Ramseur
v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1989)).
There is also some evidence that Siegel did harbor discriminatory
animus toward plaintiff on account of his race, national origin, or
religion. There is, for example, the alleged "Moroccan" comment. True,
the term "Moroccan" is not inherently derogatory, and not all references
to a person's race, ethnic group, or national origin are probative of
discrimination. Nonetheless, I believe that, depending on the testimony
at trial, a factfinder might reasonably conclude that, when looked at in
the context of the surrounding circumstances, this remark is some
evidence that Siegel was prejudiced against plaintiff on account of his
According to plaintiff, he and Siegel were both in attendance at a
school function attended by a number of faculty members and students, and
Siegel called out from across the room, "Hey, you the Moroccan." That
comment may have been no more than a good-natured, albeit ill-advised,
attempt at humor, although given the apparently less than cordial
relationship between Siegel and plaintiff, that seems unlikely. Calling
someone from across a room by reference to his ethnicity, however, could
also indicate a certain degree of discriminatory animus toward that
group.*fn6 There is a subtle, but real, difference between describing
someone by reference to his race or national origin, and calling someone
in that way. For example, if person A, standing in a crowded room with
person B, attempts to point out person C by saying to person B, "It's that
black man standing over there," most people would not infer any animus
from that statement. But if person A calls out to person C, "Hey you,
black man," most people would react quite differently.
I recognize that there is authority that "simple teasing" is not
actionable under Title VII. Cases in which the courts have stated that
general principle, however, typically involve hosfile work environment
claims. See, e.g., Mcmatt v. Bank of America, NA, 339 F.3d 792, 798 (9th
Cir. 2003) (conduct of coworkers and supervisor of bank employee of
Chinese descent, including telling of jokes overheard by plaintiff in
which phrase "China man" was used, was not objectively abusive and did
not so pollute workplace as to alter conditions of plaintiff s
employment). Sadki, however, is not asserting a hosfile work environment
claim, but a disparate treatment claim. The "Moroccan" comment, then,
though not actionable in itself, is nevertheless some evidence of
Siegel's attitudes. See Chavez v. Illinois State Police, 251 F.3d 612,
646 (7th Cir. 2001) (though racially insensitive remarks do not by
themselves violate the Constitution, they can be evidence of racial
Plaintiff also alleges, in a statement attached to the complaint in
this action, that the first time he met Siegel in 1990, "she went on
about a story of a student in Tours who almost got raped by this Arab
guy." Again, that is not necessarily indicative of discriminatory animus,
but a factfinder might
conclude that it is. The manner in which Siegel allegedly brought
this up is not clear, but it seems odd for a person, upon meeting someone
from North Africa, to mention that she knows someone who was nearly raped
by an Arab.
In addition, the DHR decision states that a member of the department
related "inappropriate comments that students had reported were made to
them about [Sadki] by Ms. Siegel," and that another department member
stated that he or she had "the impression that Ms. Siegel had problems
working with people from other countries, especially Islamic ones." I
realize that this is hearsay, and that the DHR's decision does not
indicate the substance of the "inappropriate comments," or whether the
latter witness testified as to the basis for his or her "impression"
about Siegel's attitudes toward people from Islamic countries. A court
deciding a motion for summary judgment, however, can consider hearsay
upon "a showing that admissible evidence will be available at trial."
Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919,
924 (2d Cir. 1985). Since these persons made these statements to the DHR
investigator, it seems likely that they could be called to testify at
trial.*fn7 See Savage v. Scripto-Tokai Corp., 266 F. Supp.2d 344, 352
(D.Conn. 2003) (considering hearsay evidence, where it appeared that
plaintiffs would "be able to present this evidence in admissible form at
trial, either by calling the deponents themselves or establishing their
The DHR decision is also itself some evidence that the Court can
consider. See Paolitto v. John Brown E. &C., 151 F.3d 60, 65 (2d
Cir. 1998) (whether to admit EEOC or state-agency findings is committed
to the sound discretion of the district court); see also Adams v. Monroe
County Dep't of Social Services, 21 F. Supp.2d 235, 241 (W.D.N.Y. 1998)
("Although not binding on this court, [the EEOC's] findings are entitled
to some weight") (citing Philbrook v. Ansonia Ed. of Educ., 757 F.2d 476,
481 (2d Cir. 1985)). This is not a case where the agency's decision is
"conclusory and completely devoid of analysis," Coleman v. Quaker Oats
Co., 232 F.3d 1271, 1281 (9th Cir. 2000). Rather, the DHR decision sets
forth a number of relevant facts and evidence, and explains how that
evidence supports an inference of discrimination.
Although the evidence of discriminatory intent is not overwhelming,
then, I believe that plaintiff has proffered at least enough evidence to
meet the de minimis burden required to make out a prima facie case.
Defendant having proffered a legitimate, nondiscriminatory reason for the
decision not to offer plaintiff the position, it becomes plaintiff's
burden at this stage to show that there exists a genuine issue of fact
about whether that proffered reason is a pretext for discrimination. I
find that plaintiff has done so.
In James, 233 F.3d at 156-57, the Second Circuit held that "evidence
satisfying the minimal McDonnell Douglas prima facie case, coupled with
evidence of falsity of the employer's explanation, may or may not be
sufficient to sustain a finding of discrimination." In order to determine
whether a plaintiff's case is sufficient to bar summary judgment, the
court must "analyze the particular evidence to determine whether it
reasonably supports an inference of the facts plaintiff must
prove-particularly discrimination." "Evidence suggesting that the
defendant's proffered reason is false will certainly bear upon, but is
not necessarily dispositive of, that issue." McFadden,
195 F. Supp.2d at 446. See also Reeves, 530 U.S. at 147 ("Proof that the
defendant's explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination,
and it may be quite persuasive").
Here, there is some evidence that defendant's stated reasons for not
selecting plaintiff-his lack of a Ph.D. in French and his "minimal"
scholarship and publications-are pretextual. For one thing, McLean's
statement that he was surprised that the department had not tailored the
hiring criteria to match plaintiff's credentials suggests that, if the
department had so tailored the criteria, McLean might have recommended to
Yu that plaintiff be selected for the position. Yet McLean knew, after
receiving the committee's recommendations and meeting with members of the
department, that Sadki-in McLean's own words-was the department's "top
choice." McLean Decl. Ex. F. Since the department-which drafted the
hiring criteria-was obviously not troubled by Sadki's lack of a Ph.D. in
French, or by his relative lack of published research, a factfinder could
question the credibility of McLean's claims that those were the reasons
for his decision, and that Siegel's input had no bearing on his
In addition, as the DHR investigator noted, the two committee members
that he interviewed did not recall McLean even mentioning Sadki's degree
when he met with them to discuss his concerns about Sadki. Plaintiff also
states that when McLean interviewed him, McLean asked him nothing about
plaintiffs Ph.D., research, teaching, or other qualifications. Sadki
Decl. ¶ 5. Although McLean states that there was no need for him to
ask about such matters, since "Dr. Sadki's credentials were listed on his
resume," McLean's Response to Interrogatories (Docket #26) at 1, again a
jury might well decide, after hearing the testimony at trial, that this
explanation is not credible.
Defendants point out that the other deans whom McLean consulted were
also of the opinion that plaintiff was not qualified for the position. It
appears, however, that McLean simply gave them the job description and
plaintiff's CV. They did not have the benefit of the committee's
recommendations, which highly praised plaintiff's qualifications for the
position. At any rate, even if the finder of fact considers this to be
persuasive evidence that defendant's stated reason for not selecting
plaintiff is true, it is not enough for this Court to reach that
conclusion as a matter of law on a motion for summary judgment.
I also note that although Siegel asserts that she did not know what
plaintiff's national origin was,*fn8 see Patricia Siegel's Response to
Plaintiff's Interrogatories (Docket #31) ¶ 6, she also states that
she read plaintiff's application file, id. ¶ 1, which presumably
included his CV.*fn9 Plaintiff's CV does not expressly state plaintiff's
country of origin, but it does state that he received a bachelor of arts
degree from Algiers University, McLean Decl. Ex. B, which would certainly
suggest a strong possibility that plaintiff was Algerian. At any rate, if
Siegel did refer to plaintiff as "the Moroccan," that indicates that she
believed him to be from somewhere in North Africa.
In addition, the person who was selected for the position, Wilkerson,
did not yet have her doctorate at the time she was selected. Defendant
contends that for entry-level positions, it was customary to consider
candidates who were "ABD" (All But Dissertation), i.e., nearly finished
their doctoral program. Even if that were true, however, it is some
evidence that the minimum requirements stated in the job description were
not as rigid as defendant suggests.
There is also evidence that, contrary to usual practice, Siegel did not
sign a certain paper in Sadki's file certifying that she had reviewed
plaintiffs application. She states that she does not remember why she did
not do so, and that she may have simply neglected to sign in her haste to
hand back the file in a timely manner. See Siegel's Response to
Plaintiffs Interrogatories at 2. Siegel also did not submit any written
recommendation of her own to McLean, but there is no doubt that she did
discuss the vacancy with McLean prior to his submission to President Yu.
Defendant's Rule 56.1 Statement, ¶¶ 32, 34 (Dkt. #34). Instead, when
she forwarded the committee's recommendations to McLean, she attached a
cover letter that simply stated, "I have received, read and hereby submit
to you the letter concerning the candidates from the members of the
Department." McLean Decl. Ex. D.
McLean states, with respect to Siegel's failure to submit her own
recommendation, that he "was very familiar with the `political' issues in
the department and appreciated the position [Siegel] was in. I understood
that she did not want to go `against' the Search Committee's
recommendation, so I suggested that she simply transmit the Committee's
recommendation to me for consideration without taking a position one way
or the other." McLean's Response to Interrogatories at 3. From this a
jury could reasonably infer that McLean already knew Siegel's opinion of
Sadki and that it was contrary to the Search Committee's favorable
Although one could argue that, if Siegel truly wished to torpedo
plaintiffs candidacy, she would have submitted her own (negative)
opinion, one could also view these omissions on her part as evidence that
she wanted to create the appearance that she had played no part in the
decisionmaking process. Since, on this motion, the Court must view the
record in the light most favorable to plaintiff, and draw all inferences
in his favor, see Hayut v. State University of New York, 352 F.3d 733,
743 (2d Cir. 2003), I find that this evidence, combined with all the
other evidence discussed above, creates a genuine issue of material fact
about whether Siegel, acting out of impermissible motives, so influenced
McLean's conclusion that plaintiff was unqualified for the position that
her discriminatory animus became a motivating factor in the ultimate
decision to offer the position to Wilkerson instead.
Defendant's motion for summary judgment (Docket #32) is denied.
IT IS SO ORDERED.