The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Disputes over tenure and promotion in universities are often bitterly fought, and qualification for promotion often turns on highly subjective and contested evaluations of academic work in environments where factional rivalries are endemic. Accusations that purportedly objective decisions are based on discrimination or personal hostility are not uncommon. Rivalries and vendettas may last for years, and questions of ideology, professional methodology, personal relationships, racism, and sexism often overlap. Disentangling these strands is difficult, as is distinguishing objective evidence from suspicion, rumor, and speculation.
Laura Hinton, a tenured associate professor of English at the City College of New York ("CCNY"), a branch of the City University of New York ("CUNY"), brought this action against CCNY and Fred Reynolds, Dean of CCNY's Division of Humanities and the Arts and the former chair of the English Department, asserting causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. ("Title II"), the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. ("SHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107, et seq. ("CHRL"). Hinton alleges that she has suffered adverse employment actions and has been subjected to a hostile work environment because she is a woman, because she has engaged in protected activity, and because she has chronic fatigue syndrome and irritable bowel syndrome.
Defendants move for summary judgment, contending that no reasonable juror could find in Hinton's favor on any of her claims of discrimination. For the following reasons, defendants' motion will be denied as to Hinton's claims of sex discrimination and retaliation regarding her second application for promotion, and as to her claim of retaliation regarding her exclusion from grants and committee work, and granted in all other respects.
The purpose of summary judgment is to determine whether there are triable issues of fact or whether the evidence in support of plaintiff's claims is so weak that no reasonable jury could find in plaintiff's favor. Therefore, on this motion the Court does not engage in factfinding, but only determines whether a reasonable factfinder could make certain findings. The facts in this section are either undisputed or presented in the light most favorable to Hinton.
I. Hinton's Career at CCNY
Hinton, whose area of expertise is contemporary and experimental women's literature, received her Ph.D. in contemporary literature from Stanford University in 1991, and began teaching at CCNY soon thereafter. In 1993, she was promoted to a tenure-track position as an assistant professor. Hinton was initially denied tenure by the English Department in 1997. She appealed that denial, and in May 1998, CCNY's President overturned the English Department's decision. (Hinton Dep. at 33-34.) Hinton received tenure in 1998, and was promoted to Associate Professor in January 2000. (Reynolds Decl. Ex. A at 1.)
Hinton applied for promotion to full professor in three different academic years: first in 2003-2004, second in 2004-2005, and third in 2005-2006. Her first two applications were unsuccessful: the first was rejected as untimely and not reviewed on the merits, and the second was denied on the merits by the English Department, a decision sustained on appeal at all levels of the college. Hinton's third application was recommended by the Department, denied by divisional and college-wide review committees, and ultimately recommended by President Gregory Williams to the CUNY Board of Trustees, who ultimately granted the promotion. She has been a full professor since January 1, 2007. (12/21/07 Tr. 4.) Hinton's lawsuit centers on the rejection of her first two applications for full professorship, although she also asserts a number of lesser instances of alleged discrimination. (Id. at 21.) Hinton initially asserted a claim regarding her third application for full professorship, but concedes that that claim was rendered moot when the application was ultimately granted. (12/21/07 Tr. 4.) However, the record includes evidence relating to the third application, some of which may be relevant to the merits of Hinton's other claims.
II. Hinton's Applications for Promotion to Full Professorship
Hinton's central claim is that CCNY and Reynolds discriminated and retaliated against her by unfairly denying her applications for promotion to full professor in 2003 and 2004. Evaluating this claim requires an understanding of the promotions process at CCNY.
Promotions to full professorship are made after four levels of review. (Williams Decl. ¶ 7.) The process begins at the departmental level, when a professor submits an application to the departmental promotions committee. The promotions committee, which consists of all full and distinguished professors in the department, reviews the application twice. A successful first screening authorizes the candidate to solicit external review letters, and triggers a written report by the department chair. (Id. ¶ 8; Hinton Dep. at 193.) At the second screening, the committee performs a complete evaluation, reviewing the applicant's scholarship as well as numerous letters of reference. (Williams Decl. ¶ 9.)
After the departmental review, the department chair presents the application to the divisional committee, made up of the chairs of all academic departments within the candidate's division of CCNY. (Id. ¶¶ 11-12.) In the case of the English Department, the relevant division is that of Humanities and the Arts. (Id. ¶ 11.) After the divisional review, the dean of the relevant division presents the application for review by a college-wide review committee, composed of the deans of the various divisions of the college and the provost. (Id. ¶ 14; Reynolds Decl. ¶ 22.) After the college-wide review, the application is reviewed by CCNY's President, who makes a final determination whether to recommend the applicant to the Chancellor and Board of Trustees. (Williams Decl. ¶¶ 15-17.) As is unsurprising, the "experience, credibility, and rhetorical persuasiveness" of the person who presents a candidate's application to a committee "influences how [the application] is received." (Willner Dep. at 63; see also Hinton Dep. at 65.)
If the recommendation of a particular committee is positive, then the application is automatically reviewed at the next level. (Williams Decl. ¶¶ 9, 13, 15.) If the recommendation is negative, however, the application is reviewed at the next level only if the applicant affirmatively appeals the negative decision. (Id. ¶¶ 10, 13, 15.) The deliberations of the various committees are confidential, and the voting is by secret ballot. (Id. ¶¶ 9, 12, 15.) However, if CCNY's President decides against recommending a candidate for promotion, he must provide upon request a statement of reasons for his decision. (Id. ¶ 18; Hinton Dep. at 188.)
B. Hinton's First Application
On February 3, 2004, two days before the scheduled meeting of the departmental promotions committee, Hinton submitted her first application for promotion to Linsey Abrams, then chair of the Department. (Abrams Decl. ¶ 6.) On February 5, 2004, the committee met and unanimously voted not to consider Hinton's application on the ground that Hinton submitted her application too late and the committee did not have adequate time to evaluate the application. (Id. ¶¶ 7-8.) At the same meeting, the committee considered the application of Elizabeth Mazzola, a female colleague of Hinton's. (Id. ¶ 10.) Mazzola, who was scheduled to be on maternity leave during the Fall 2003 semester, had notified Abrams during the Spring 2003 semester of her intention to seek promotion. (Id.) The committee recommended Mazzola for promotion, which was ultimately approved by CCNY's President and CUNY's Board of Trustees. (Id. ¶ 11.)
C. Hinton's Second Application
Hinton submitted her second application for promotion on October 4, 2004. (Abrams Decl. ¶ 9.)*fn1 On February 3, 2005, the Department's committee considered Hinton's application and did not recommend her for promotion. (Reynolds Decl. ¶ 17.) Reynolds, although a member of the English Department, was not present at that meeting, and did not vote at the departmental level. (Id. ¶ 17.) Hinton asked the committee to reconsider its decision, and on May 5, 2005, it again voted against promotion. (Id.)
Hinton then appealed the departmental decision to the divisional committee. (Reynolds Decl. ¶ 18.) As Dean of Humanities, Reynolds chaired the meeting, but did not vote. (Id. ¶ 21.) Joshua Willner, by then chair of the English Department, presented Hinton's candidacy to the divisional committee. (Id. ¶ 21.) Willner reported to the committee that he did not consider Hinton's case "a simple one." (Reynolds Decl. Ex. A at 8.) Willner noted that Hinton "is intelligent, imaginative, and energetic in areas that engage her interest, but her effectiveness is qualified by a tendency . . . to miss or be late to meetings that don't conform to her schedule and by a tendency to become involved in imbroglios." (Id. at 7.) In the report, Willner noted that he, like the English Department, declined to recommend Hinton for promotion, but also noted that "[i]f the current year passes calmly and Prof. Hinton continues to be productive, I would be ready to support her candidacy for promotion in the relatively near future." (Id. at 8.) The divisional committee declined to recommend Hinton for promotion. (Reynolds Decl. ¶ 21.)
Hinton appealed that decision in turn to the college-wide review committee. (Reynolds Decl. ¶ 22.) As Dean of Humanities, Reynolds presented Hinton's candidacy to the review committee, which unanimously voted not to recommend Hinton for promotion. (Id.) Hinton appealed that decision to President Williams, who also declined to recommend her for promotion. (Williams Decl. ¶¶ 20-21.) In a letter to Hinton dated June 8, 2006, Williams provided his reasons, focusing on the quality of her scholarship. (Id. ¶ 23 & Ex. F.)*fn2 Hinton's request that Williams reconsider his decision was denied. (Hinton Dep. at 187.)*fn3
D. Hinton's Third Application
Hinton's third, and ultimately successful, application, was submitted in the Fall 2005 semester. (Williams Decl. ¶ 24.) On April 27, 2006, the English Department promotions committee voted to recommend Hinton's promotion. (Reynolds Decl. ¶¶ 26-27.) Reynolds again was not present at either the initial or secondary screening by the committee. (Id.)
The recommendation was not made without opposition. Jane Marcus, a senior member of the Department who was present at the meeting, testified that Professor Mark Mirsky, who by the time of the second screening was the chair of the committee (id. ¶ 27), "was not present for the . . . discussion" regarding Hinton's candidacy, but "walked in just before the vote was supposed to be taken, raised his hand and said very loudly I don't think her work is good enough." (Marcus Dep. at 36.) Nevertheless, the committee voted in favor of Hinton.
On April 28, 2006, the day after the English Department's positive recommendation, Mirsky presented Hinton's application to the divisional committee. (Reynolds Decl. ¶¶ 28-29.) Reynolds was also present at that meeting. (Id. ¶ 28, Reynolds Dep. 93.) In connection with the divisional review, Willner submitted a report supporting her candidacy. (Reynolds Decl. Ex. B.) Notwithstanding the Department's positive recommendation, the divisional committee unanimously voted not to support Hinton's promotion. (Reynolds Decl. ¶ 28.) Hinton appealed that decision to the college-wide review committee, which on December 1, 2006, voted not to recommend Hinton's application to President Williams. (Id. ¶ 29.) Reynolds, who was present at the meeting and presumably presented Hinton's candidacy to the group in his capacity as Dean of Humanities (id. ¶¶ 22, 29), testified that Hinton's second and third application records were "largely the same." (Reynolds Dep. at 75.) In spite of the negative recommendations of the divisional and college-wide committees, President Williams decided to recommend Hinton's application for promotion to full professor to the Board of Trustees, and Hinton was finally promoted. (12/21/07 Tr. 4.)
III. Evidence of Sex Discrimination
In support of her claim of sex discrimination, Hinton argues that a male colleague, Joshua Willner, was promoted to full professor with a record she claims is weaker than hers.*fn4 Neither side offers any comprehensive statistics regarding the gender of members of the English Department generally or of full professors in particular. (See 12/21/07 Tr. 13-15.)
Hinton also points to alleged sexual harassment or mistreatment that she experienced earlier in her employment with CCNY, especially at the hands of Professors Steven Urkowitz, at one point the chair of the English Department, and William Herman, at one point a dean. Hinton's colleague Jane Marcus testified that in the past, a "gang of men," led by Urkowitz, had been "rude" to Hinton and made derogatory comments about her. (Marcus Dep. at 40.) Hinton testified that in 1991, when Hinton was applying for a position at CCNY, Herman, a member of the executive committee in charge of hiring, came "very close" to her and told her that she had "the sexiest legs" and would be hired. (Hinton Dep. at 41.) Around the time Hinton was under consideration for tenure, Urkowitz, who was then Department chair (Hinton Dep. at 35), said that Hinton should be told "not to wear her skirt so short, she can't ride on the subway with an outfit like that on," and "over and over again in the halls and in his office, [made] remarks about how [Hinton] was dressed." (Marcus Dep. at 38-39.) Urkowitz also "would say things about [Hinton's] hair, her eyes. You know that her blouse was cut too low, her skirt was too short, why was she wearing high heals. I mean he really did the whole outfit." (Id. at 40-41.)
All the members of this "gang" are now retired (Marcus Dep. at 42), and thus apparently played no role in Hinton's applications for promotion to full professor. Marcus believed, however, that Urkowitz's actions "probably" affected Hinton's tenure application, which was initially denied, because:
[t]here was all this atmosphere around in the department, poisonous atmosphere of people siding with [Urkowitz] or not siding with [Urkowitz] and you know he made it permissible. He essentially, by acting out all this sexism, it made it possible for all the other men to join him in that swaggering way. . . . In other words, he was Chair. He gave permission. (Marcus Dep. at 45.)*fn5
In addition to the above evidence, Hinton also proffers a number of hearsay statements, as well as otherwise inadmissible, conclusory, or irrelevant testimony, which must be disregarded in connection with this motion.*fn6
IV. Evidence of Disability Discrimination
Hinton has been diagnosed with both chronic fatigue syndrome and irritable bowel syndrome (Hinton Dep. at 82), and she contends that these conditions are disabilities for purposes of the ADA. Chronic fatigue syndrome gives Hinton "less energy to do . . . the work [she] would like to do" and requires her to "pace [herself] very carefully." (Id. at 83.) As a result of her condition she "seem[s] to have limited hours when [she] can be up and performing" and is "[n]ot like [her] old self." (Id. at 84.) Her irritable bowel syndrome has affected her ability to perform her job duties in a "very similar manner" to how chronic fatigue syndrome has affected her job -- she has to pace herself and to "carefully craft schedules." (Id. at 91.) As a result of Hinton's irritable bowel syndrome, she has lived with pain at times "severe to moderate," and sometimes "debilitating," and has had "to take exceptional care of [her] health, eat organic produce and meats," and has had "to eat on a systematic basis; very expensive, very time consuming." (Id. at 88-89.) As a result of both of these syndromes, she reacts negatively to "severe stress." (Id. at 92.)
In late 2000, presumably as a result of these conditions, Hinton took a medical leave of absence, in her words, "part-time disability leave," that lasted approximately until Fall 2001. (Id. at 145.) Her medical condition is a matter of "general knowledge" in the Department. (Id. at 95.) Starting on the first day of classes in Fall 2002, and over the course of approximately six weeks, Reynolds spoke with or wrote letters to Hinton suggesting that they explore options for early disability retirement. (Id. at 95-98; 203-207.) Hinton informed Reynolds that she was not interested in exploring those options. (Id.)*fn7
Because of her medical condition, Hinton has to plan her schedule carefully. The English Department has "honored [her] scheduling requests," and Hinton does not believe that "the scheduling of the classes . . . [has] been a problem" for her, in terms of her medical condition. (Hinton Dep. at 85.) However, at one point Reynolds scheduled Hinton to observe some adjunct faculty, and Hinton informed Reynolds that she would be unable to do the observations because of her teaching and treatment schedules. (Id. at 86.) Hinton was not disciplined for refusing to observe these adjunct faculty members. (Id. at 87.) However, Hinton has linked this incident to Reynolds's suggestions that she take early retirement. (Id.)
V. Evidence of Retaliation
To support her claims of retaliation, Hinton points to numerous instances in which she has complained, formally and informally, of discrimination against her by co-workers and various parts of the CCNY administration. On December 8, 1994, Hinton complained to Martin Tamny, then the Dean of Humanities, regarding Urkowitz's behavior. (Banks Decl. Ex G, at 2.)*fn8
On July 8, 1998, following her contentious tenure case, Hinton filed a charge with the EEOC, alleging that Tamny and Urkowitz had discriminated against her on the basis of race, color, sex, religion, national origin, and her past complaints of discrimination. (Banks Decl. Ex G, at 2.)
Sometime during the Spring 2003 semester, Hinton also filed an internal complaint against Reynolds regarding his suggestions that she take early retirement and his alleged mistreatment of Di Iorio. (Hinton Dep. at 38-39.) That complaint was not treated with the level of confidentiality that Hinton had expected. (Id. at 67-72.) Hinton complained to President Williams about how her complaint against Reynolds had been handled. (Id. at 69.) The complaint against Reynolds was ultimately dismissed by the affirmative action officer, and Hinton apparently then filed a complaint against the affirmative action officer. (Reynolds Dep. at 70.)
Hinton filed her second EEOC charge of discrimination on February 3, 2004, and later supplemented it. (Banks Decl. Ex. D.) That complaint alleges a "campaign of discrimination and retaliation against" her. (Id.) This second EEOC charge largely forms the basis of her current lawsuit. During the course of her second application for promotion, Hinton also complained to the Dean of Faculty Relations about Abrams, claiming that Abrams was not responding to Hinton's requests to meet to discuss Hinton's application for promotion. (Hinton Dep. at 212-14.) Hinton was once told, perhaps due to her frequent complaints and conflicts with various colleagues, that she is a "problem in the community." (Id. at 53.) As is unsurprising, it is "widely known" in the English Department that Hinton has sued Reynolds. (Reynolds Dep. at 100.)
In addition to complaining on her own behalf, Hinton has helped others file complaints or has taken it upon herself to complain on behalf of others. At one point, on behalf of some of her students, Hinton made an informal complaint about the behavior of some members of the audio-visual/instructional media department. (Hinton Dep. at 39-40.) Hinton also helped Di Iorio to file an affirmative action complaint against Reynolds some time before Summer 2004. (Id. at 99-102.) That complaint related to Reynolds's alleged refusal to allow Di Iorio to accept a Puerto Rican Studies Fellowship. (Id. at 101.) After that complaint was made, Reynolds told Di Iorio that she would not be tenured in part because she filed an affirmative action complaint. (Di Iorio Aff. ¶ 5.) Di Iorio eventually secured tenure "after a big battle." (Hinton Dep. at 104.)
In addition to the inference that this extensive and well-known history of discrimination complaints irritated her senior colleagues, Hinton also relies on evidence that Reynolds has openly and directly expressed retaliatory animus against her. Marcus testified that, before the departmental meeting to discuss Hinton's second application for promotion to full professor, she asked Reynolds, "why are you harassing Laura Hinton and what did she ever do to you[?]" (Marcus Dep. at 34.) In response, Reynolds "gestured to . . . file cabinets" apparently containing files relating to Hinton and said, "that's what she did to us, these two file cabinets." (Id.)
Indeed, Hinton's personnel file, available to members of the Department, contained misplaced confidential documents relating to her EEOC ...