The opinion of the court was delivered by: Brieant, J.
Before the Court for decision is Defendant's motion for summary judgment dismissing Plaintiff's claims, filed on November 24, 2004. (Doc. 22). Plaintiffs are professors at defendant Rockland Community College ("RCC"). They applied for promotion to the rank of Associate Professor in 2003-04, and were both denied promotion. Plaintiffs claim that they were not promoted on account of their national origin and color, in violation of the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. sec. 1981-a. The following facts are either undisputed or assumed to be true for purposes of these proceedings only.
RCC has adopted a Reappointment, Tenure and Promotion Policy, ("RTP") approved by the SUNY Rockland Board of Trustees and the Faculty Senate. The RTP states that three specific categories are to be used "in making decisions related to the granting of reappointment, tenure and promotion." These three categories are "Effectiveness", "Service" and "Mastery."
The RTP provides for a uniform review process. Candidates are evaluated first by a Divisional Reappointment, Tenure and Promotion Committee ("Divisional Committee"). (Plaintiffs were both professors in the Humanities Division). The Divisional Committee members use scoring sheets, referred to as rubrics, to quantify a candidate's performance using various criteria specified by the RTP. The RTP requires that each committee member review a portfolio submitted by the candidate, and then independently complete the rubric evaluation.
The committee members then discuss and re-examine the rubric evaluations, and reevaluate their rubric scores accordingly. The Chair is then to tabulate the final score for each element, which shall thereafter become finalized anonymous rubric scores. These scores are averaged so as to arrive at one final committee score for each candidate. In order to achieve a positive recommendation, the candidate must meet the minimum required score specified by the RTP in the categories of teaching Effectiveness, Mastery and Service, as well as the overall qualifying score.
Each recommendation is to be accompanied by a reasoned written rationale. Following the Divisional Committee review, the promotion submissions are reviewed by the Faculty Senate College RTP committee ("FSCRTPC"), which follows the same procedure as is set forth above. The FSCRTPC is then to forward its recommendation to the appropriate Vice President. The candidate may appeal an unfavorable recommendation to that Vice President, who shall forward all recommendations to the President of the College.
Plaintiff Sosa is a native born United States citizen of Mexican descent. She is a professor of Pluralism and Diversity in America at RCC. She began teaching at RCC in 1991. She was tenured in 1999, after suing Defendant for its allegedly discriminatory denial of that status. Plaintiff Sosa was denied promotion twice: first during the 2002-03 academic year, and then during the following academic year of 2003-04.
When her 2002-03 application was evaluated by the Humanities Divisional Committee, the Committee approved Sosa for promotion by a vote of 4-1. The Divisional Committee noted that her "strength while here at Rockland Community College has been her teaching", and that 82.5% of her students during the preceding three years had rated her outstanding or good as a teacher.
About five weeks after Sosa received Departmental support for her bid for promotion, the FSCRTPC unanimously voted not to recommend Plaintiff for promotion, by a vote of 9-0. In their report to the Vice President, the FSCRTPC stated that Sosa "did not meet the minimum qualifying scores for promotion in effectiveness and mastery." The FSCRTPC gave Sosa a score of 12 for Service; 18 for Mastery; and 21 for Effectiveness, for a total score of 51. It further explained in its report that Sosa "needs to address written comments in her evaluations that reflect negative perceptions of her availability to students and her ability to respond to their needs. For example, students' comments that classes were frequently cancelled could be remedied to a degree by arranging coverage." The FSCRTPC noted that Sosa's completion of her doctoral degree would advance her scores as to mastery and scholarship, and encouraged her "to continue her participation in activities that provide service to the College and community."
Sosa submitted a timely appeal to the Vice President on May 10, 2003.*fn1
On July 22, 2003, the Vice President denied the appeal and recommended to Sosa that she "develop a plan for [her] professional development." Sosa met with the Vice President on September 9, 2003. From the memoranda prepared by both, after their meeting, it appears that the Vice-President was concerned with negative student comments about Sosa's "attendance and canceling classes." Sosa stated in the meeting, and again in a follow-up memorandum, that her absences were due to well documented emergencies involving her health and her disabled son. She also stated that these absences were not reported to students in advance because school officials were not reachable.
Sosa reapplied for promotion to the rank of Associate Professor on January 31, 2004. On March 2, the Divisional Committee voted 4-1 against the promotion. In its memorandum to the FSCRTPC, the Divisional Committee stated it "had no choice but to vote against promotion". It explained that "Professor Sosa's most recent student evaluation (68.0% Outstanding or above average) are the lowest recorded in five years." The Divisional Committee commented on the lack of new peer observation or supervisory reports, and stated that it was concerned ...