Tsaganea v. The City University of New York et al

Filing 33

REPORT AND RECOMMENDATION: For the reasons set forth above, the defendants' motion for summary judgment should be granted with respect to the plaintiff's discrimination claims and denied with respect to his retaliation claim. Pursuant to 28 U.S.C. 636(b) (1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Cl erk of the Court, with extra copies delivered to the chambers of the Honorable Deborah A. Batts, Room 2510, and to the chambers of the undersigned, Room 1960, 500 ?earl Street, New York, New York 10007. appellate review. Objections to R&R due by 2/16/2010 (Signed by Magistrate Judge James C. Francis on 1/27/2010) Copies Mailed By Chambers.(jfe)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -: DORU TSAGANEA, : 06 Civ. 15366 (DAB)(JCF) : Plaintiff, : REPORT AND : RECOMMENDATION - against : : THE CITY UNIVERSITY OF NEW YORK : and BARUCH COLLEGE, : : Defendants. : - - - - - - - - - - - - - - - - - -: TO THE HONORABLE DEBORAH A BATTS, U.S.D.J.: Doru Tsaganea brings this employment discrimination action pro se pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296, alleging that Baruch College, a senior college of the City University of New York ("CUNY"),

discriminated against him on the basis of his national origin and religion and then retaliated against him when he complained of such treatment.1 The defendants now move for summary judgment pursuant For the

to Rule 56 of the Federal Rules of Civil Procedure.

reasons set forth below, I recommend that the motion be granted in part and denied in part.

Originally, the plaintiff also alleged age discrimination, but this claim was dismissed pursuant to my Report and Recommendation dated August 28, 2008 and the Order adopting it dated October 8, 2008. Tsaganea v. City University of New York, No. 06 Civ. 15366, 2008 WL 4054426 (S.D.N.Y. Aug. 28, 2008). 1

1

Background2 Doru Tsaganea was born in Romania to Greek and Armenian parents and is an Eastern Orthodox Christian. (Amendment to State

Division of Human Rights Complaint dated April 22, 2003 ("First Admin. Compl."), attached as Exh. 1 to Complaint ("Compl."), ¶ 1). After emigrating to the United States in 1984, he became a

naturalized American citizen.

(Affidavit of Doru Tsaganea dated Dr. Tsaganea holds (Compl. at

July 2, 2007 ("Tsaganea 7/2/07 Aff.") at 5, 8).

doctoral degrees in Political Science and Economics. 4).

From January 1998 to May 2002, Dr. Tsaganea was an Adjunct Assistant Professor at Baruch College. (First Admin. Compl., ¶ 3). When this dispute Professor arose, in he had been promoted Science to Substitute (the

Assistant

the

Political

Department

"Department"), a position that he held from September 2002 through August 2003.3 (First Admin. Compl., ¶¶ 2-3; Plaintiff's Responses

to Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Pl. Response") at 29). In December 2002, the plaintiff applied for a tenure-track

The factual background of this case is also set forth in my earlier Report and Recommendation. Tsaganea, 2007 WL 2907280. Substitute professorships are full-time positions that may not last for more than four semesters. (Letter of Doru Tsaganea dated July 10, 2006 ("Tsaganea 7/10/06 Letter"), attached as Exh. 4 to First Admin. Compl., at 4-5; Defendants' Local Civil Rule 56.1 Statement ("Rule 56.1 Statement"), ¶¶ 14-15). 2
3

2

position as an Assistant Professor in the Department.

(First

Admin. Compl., ¶ 4). The selection committee did not interview him for the opening, a decision CUNY claims was based on the "unusually weak" letters of recommendation that he submitted and his "sparse" history of publication. (Memorandum of Law in Support of

Defendants' Motion for Summary Judgment ("Def. Memo.") at 7-8). The Selection Committee interviewed five candidates and offered the position to Dr. Norrin Ripsman. (Declaration of Thomas Halper Dr. Ripsman

dated May 28, 2009 ("Halper Decl."), ¶¶ 20, 24).

ultimately declined the offer, and the search remained open until 2004, when Dr. Dov Waxman was hired. (Halper Decl., ¶ 24; Def. Memo. at 9). Dr. Tsaganea notes that the majority of the selection

committee members and its chairperson, as well as Dr. Waxman and Dr. Ripsman, are Jewish. Response at 4, 20, 51-53). (Tsaganea 7/10/06 Letter at 12; Pl.

The defendants respond that between

their offers to Dr. Ripsman and Dr. Waxman, they offered the position to a candidate of Indian origin. 27).4 (Rule 56.1 Statement, ¶

Although both parties are required to submit a Local Rule 56.1 Statement of Facts, only the defendants did so in this case. Generally, a "plaintiff['s] failure to respond or contest the facts set forth by the defendants in their Rule 56.1 statement as being undisputed constitutes an admission of those facts, and those facts are accepted as being undisputed." Jessamy v. City of New Rochelle, New York, 292 F. Supp. 2d 498, 504 (S.D.N.Y. 2003). However, given the plaintiff's pro se status, I will only treat the defendants' facts as admitted for the purpose of this motion where Dr. Tsaganea has presented no specific contradictory evidence. See Wagner v. County of Nassau, No. 07 CV 4042, 2009 WL 2824699, at *2 3

4

In

February

2003,

Dr.

Tsaganea

complained

to

his

union

representative and to CUNY's Chancellor, Matthew Goldstein, about not being hired. (First Admin. Compl., ¶ 9; Letter of Doru

Tsaganea dated Feb. 17, 2003 (Tsaganea "2/17/03 Letter"), attached as Exh. 14 to Declaration of Clement J. Colucci dated May 29, 2009 ("Colucci Decl."); Rule 56.1 Statement, ¶¶ 28-31). In his letter

to Chancellor Goldstein, which was dated February 17, 2003 (the "February Letter"), Dr. Tsaganea wrote that he believed the

decision not to interview him for the position "constitute[d] a case of flagrant job discrimination." 2). (Tsaganea 2/17/03 Letter at

In response to this letter, Baruch College's Affirmative

Action Officer commenced an internal investigation. (Report of Carmen Pedrogo dated March 21, 2003 ("Pedrogo Report"), attached as Exh. 17 to Colucci Decl.). Ultimately, the officer found "no (Declaration of Carmen

evidence of any form of discrimination."

Pedrogo dated May 28, 2009 ("Pedrogo Decl."), ¶ 3). Dr. Tsaganea filed a complaint with the New York State

Division of Human Rights (the "SDHR") on April 8, 2003 and amended it on April 22, 2003. He alleged that Baruch College discriminated against him on the basis of his national origin, age, and religion5

n.2 (E.D.N.Y. Aug. 28, 2009). Dr. Tsaganea added the religious discrimination claim after learning that the tenure-track position was offered to Dr. Ripsman, whom he knew to be Jewish. (Pl. Response at 27-28). 4
5

by denying him an interview for the full-time professor position. (First Admin. Compl., ¶¶ 8, 10). On July 20, 2005, the SDHR

determined, after an investigation, that there was no probable cause to believe that the defendants had discriminated against the plaintiff. (Determination and Order After Investigation dated July 20, 2005 ("First Admin. Determination"), attached as Exh. 3 to Compl., at 1). The SDHR concluded that CUNY had "articulated

legitimate, non-discriminatory academic and business reasons" for declining to interview him. (First Admin. Determination at 3).

The SDHR also referred the complaint to the Equal Employment Opportunity Commission (the "EEOC"), which adopted the SDHR's findings. (EEOC Notice of Charge of Discrimination dated April 8,

2003, attached as Exh. B to Declaration of Clement J. Colucci dated March 31, 2008 ("Colucci 3/31/08 Decl."); Affidavit of Holly M. Woodyard dated March 27, 2008 ("Woodyard 3/27/08 Aff."), attached as Exh. C to Colucci 3/31/08 Decl.; EEOC Charge Detail Inquiry, attached as Exh. A to Woodyard 3/27/08 Aff.). In May 2003, due to CUNY's failure to fill the available tenure-track position, the Department had an opening for a

Substitute Assistant Professor for the 2003-2004 school year. (Halper Decl., ¶¶ 25, 31). On May 12, 2003, the plaintiff wrote to

Dr. Thomas Halper, the Department's Chairperson, asking to be reappointed to this position for a second year. (Rule 56.1

Statement, ¶ 43; Letter of Doru Tsaganea dated May 12, 2003

5

("Tsaganea 5/12/03 Letter"), attached as Exh. 20 to Colucci Decl.). A week later, the plaintiff sent Dr. Halper a second letter informing him about the discrimination claim he had filed with the SDHR and the EEOC ("Tsaganea 5/19/03 Letter"). (Rule 56.1

Statement, ¶ 44; Letter of Doru Tsaganea dated May 19, 2003, attached as Exh. 21 to Colucci Decl.). The Department rejected the plaintiff and instead hired Dr. Prosper Bernard to fill the

substitute position.

(Rule 56.1 Statement, ¶ 39).

Dr. Tsaganea then filed the instant action on December 21, 2006. The defendants now move for summary judgment.

Discussion A. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c);

accord Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002); Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The

moving party bears the initial burden of identifying "the absence of a genuine issue of material fact." 477 U.S. 317, 323 (1986). Celotex Corp. v. Catrett,

The opposing party then must come

forward with "specific facts showing a genuine issue for trial."

6

Fed. R. Civ. P. 56(e). showing sufficient to

Where the non-movant fails to make "a establish the existence of an element

essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment must be granted. Celotex, 477 U.S. at 322. In assessing the record to determine whether there is a genuine issue of material all fact, factual the court must in resolve favor of all the

ambiguities

and

draw

inferences

nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is

sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not

significantly probative. omitted).

Anderson, 477 U.S. at 249-50 (citation

"Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)). Where a litigant is pro se, his pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.

7

1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, proceeding pro se does not relieve a litigant from the usual requirements of summary judgment, and a pro se party's "`bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); accord Gittens v. Garlocks Sealing Technologies, 19 F. Supp. 2d 104, 110 (W.D.N.Y. 1998). In addition, the court's review of the record is limited to facts that would be admissible at trial. Rule 56(e) states that

affidavits in support of or against summary judgment shall "set out facts that would be admissible in evidence." Fed. R. Civ. P.

56(e). Accordingly, only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). B. Discrimination Claim Claims of discrimination under Title VII are analyzed in accordance with the three-part framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This same framework applies to employment discrimination claims under the NYHRL. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1

(2d Cir. 2000) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in

8

Title VII claims."). together.

Therefore, I analyze both sets of claims

In the first stage of the McDonnell Douglas analysis, the plaintiff must establish a prima facie case of discrimination by showing that (1) he is within a protected group, (2) he applied and was qualified for the job at issue, (3) he was subjected to an adverse employment action, and (4) that action occurred under circumstances giving rise to an inference of discrimination.

McDonnell Douglas, 411 U.S. at 802; Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). The "evidence necessary to satisfy Zimmermann v. Associates First The defendants

this initial burden" is "minimal."

Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001).

concede that Dr. Tsaganea meets the first three of these criteria. (Def. Memo. at 16). However, the parties dispute whether the facts support an inference the selection committee declined to interview the plaintiff based on discriminatory reasons. The defendants argue that because Dr. Tsaganea does not claim that anyone in the Department displayed racial or religious animus toward him,6 there is no basis for inferring discriminatory animus.

The plaintiff originally alleged that Dr. Halper demonstrated discriminatory animus by advising him against pursuing a teaching career. (Pedrogo Report at 2). However, Dr. Tsaganea downplayed this incident in his deposition, characterizing Dr. Halper's derogatory comments as "indirect" and explaining that they mostly focused on his qualifications for a professorship. (Deposition of Doru Tsaganea dated March 26, 2009 at 49-52, attached to Colucci Decl.). The plaintiff has since recanted the allegation, declaring that no person from Baruch College ever 9

6

However, plaintiffs alleging discrimination "more often than not must depend on the cumulative weight of circumstantial evidence to make out a prima facie case." Tarshis v. Riese Organization, 211 For example, a plaintiff may

F.3d 30, 35-36 (2d Cir. 2000).

trigger an inference of discrimination by showing that the employer "treated him less favorably than a similarly situated employee outside his protected group." Graham v. Long Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000). In fact, a plaintiff can establish a

prima facie case when he shows that a position for which he was rejected remained open and was later filled by an applicant outside of his protected class. Quarantino v. Tiffany & Co., 71 F.3d 58,

65 (2d Cir. 1998); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 3738 (2d Cir. 1994). Here, Dr. Tsaganea alleges that he was treated less favorably than similarly situated Jewish candidates. (First Admin. Compl., He notes that the

¶¶ 1, 8; Pl. Response at 4, 27-28, 50-53).

position for which he applied remained open and then was offered to applicants of different nationalities and religions from his. He

further observes that the majority of the selection committee members were Jewish, as were Dr. Ripsman and Dr. Waxman. Response at 4, 27-28, 50-53). Therefore, the plaintiff (Pl. has

"insult[ed religion."

him] in any manner for [his] (Pl. Response at 49, 49 n.42). 10

national

origin

or

surpassed the low threshold needed to make out a prima facie case under McDonnell Douglas. Accordingly, the burden shifts to the defendants to produce evidence "that the adverse employment actions were taken `for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). Despite

the shift of the burden of production, "[t]he ultimate burden of persuading the trier of fact that the defendant[s] intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 507.

The defendants assert that Dr. Tsaganea was far less qualified than the candidates who were interviewed for the tenure-track position. They point to his purportedly weak letters of

recommendation and his limited record of publications in journals that they view as obscure. ¶¶ 2, 15, 21-23). The plaintiff concedes that his letters of recommendation were "unusually weak." (Pl. Response at 15). The first of the (Def. Memo. at 7-8, 17; Halper Decl.,

plaintiff's two letters of recommendation is from Professor Henry Wasser, the president of CUNY's Graduate School. Despite the

plaintiff's concession, Professor Wasser's letter appears to be positive. It concludes, for instance, with Professor Wasser's

assessment that Dr. Tsaganea is "a most highly qualified candidate

11

who has my highest recommendation."

(Letter of Henry Wasser dated

Dec. 18, 2002, attached to Application of Doru Tsaganea dated Dec. 27, 2002 ("Tsaganea Application"), attached as Exh. 13 to Colucci Decl.). In fact, the defendants attempt to undermine Professor

Wasser's letter by noting that the professor is not a specialist in international relations. The plaintiff's second letter was submitted by Professor Lentner. Although this letter is by no means negative, it pales in

comparison to a letter Professor Lentner wrote on behalf of another candidate, Jennifer Holdaway. On behalf of Dr. Holdaway, Professor L e n t n er wrote, "In sum, it is without reservation and with

considerable enthusiasm that I recommend Jennifer Holdaway for your position." (Letter of Howard H. Lentner dated Dec. 4, 2002,

attached to Application of Jennifer Holdaway dated Jan. 10, 2003 ("Holdaway Application"), attached as Exh. 8 to Colluci Decl., at 2). By contrast, Dr. Lentner concluded his letter about Dr.

Tsaganea by saying only, "I hope you will give him your serious consideration." (Letter of Howard H. Lentner dated Dec. 24, 2002, attached to Tsaganea Application, at 2).7

The plaintiff's application also included an e-mail to Dr. Halper from Professor Mark Sheingorn, who was on Dr. Tsaganea's dissertation committee. Although Professor Sheingorn characterizes his comments as a "letter of recommendation" (E-mail of Mark Sheingorn dated Dec. 23, 2002 ("Sheingorn E-mail"), attached to Tsaganea Application), Dr. Tsaganea does not. In his e-mail, Professor Sheingorn expressed his shock over the "hostile line of questioning" with which the plaintiff was confronted at his dissertation defense. (Sheingorn E-mail). The defendants simply 12

7

The defendants assert that the five candidates interviewed for the assistant professor position had more impressive records of publication that the plaintiff. (Def. Memo. at 7-8). Dr. Tsaganea had published two papers in professional journals: a 2002 article in the international scientific journal Kybernetes, and a 1997 article in Romanian for the journal Polis. (Tsaganea Application). Additionally, he had written a paper covering Romania's admission to NATO and presented thirteen papers or lectures at conferences. (Tsaganea Application). Dr. Holdaway, on the other hand, had co-

authored a book chapter as well as a journal article, written four journal articles and published two translations, despite receiving her Ph.D. ten years later than Dr. Tsaganea. (Holdaway

Application).

Another applicant, Dr. Elizabeth Wishnick, had

earned her Ph.D. the same year as Dr. Tsaganea and had completed six book chapters, five published book reviews, and twelve journal articles. (Application of Elizabeth Wishnick dated Dec. 18, 2002

("Wishnick Application"), attached as Exh. 11 to Colucci Decl.). Dr. Michael Mousseau had published a book chapter and eight journal articles and had presented fourteen papers at conferences.

(Application of Michael Mousseau dated Jan. 13, 2003 ("Mousseau Application"), attached as Exh. 9 to Colucci Decl.). Dr. Ripsman

had written one book, co-edited another, published or co-published

point out that Professor Sheingorn is a mathematician, not a professor of international relations. (Def. Memo. at 8). 13

three book chapters and eleven articles, and presented at seventeen conferences. (Application of Norrin Ripsman dated Dec. 3, 2002

("Ripsman Application"), attached as Exh. 10 to Colucci Decl.). Lastly, a graduating Ph.D. candidate, Zhiqun Zhu, had published a book review, one book chapter, and six journal articles and had presented eight conference papers. (Application of Zhiqun Zhu

dated Nov. 22, 2002 ("Zhu Application"), attached as Exh. 12 to Colucci Decl.). When the employer provides evidence of legitimate

nondiscriminatory reasons for its action, the burden shifts back to the plaintiff "to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253. A plaintiff opposing a summary judgment motion "must

produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false," Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994), and "that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia University in the City of New York, 131 F.3d 305, 312 (2d Cir. 1997). Dr. Tsaganea attempts to show that the defendants' hiring criteria were pretextual by arguing that the selection committee departed from the requirements for assistant professor appointments

14

as set forth by CUNY.

Indeed, if an employer deviates from usual

hiring practice or stated policies, this may support a finding that the employment decision was more likely than not based on

discrimination.

See id. at 313.

To support this argument, the

plaintiff cites CUNY's Bylaws as well as its Statement of the Board of Higher Education on Academic Personnel Practice ("Academic Personnel Policy"), a policy statement issued in 1975. (Pl.

Response at 36-41; Bylaws of the Board of Trustees of the City of New York dated Dec. 1, 1999 ("CUNY Bylaws"), attached as Exh. 3 to Pl. Response; Academic Personnel Policy, dated Sept. 22, 1975, attached as Exh. 4 to Pl. Response). The Bylaws require that a candidate for an assistant

professorship possess a Ph.D. and "demonstrate [] satisfactory qualities of personality and character, evidence of significant success as a teacher, interest in productive scholarship or

creative achievement and willingness to cooperate with others for the good of the institution." (CUNY Bylaws at 11.7(B)(2)).

Similarly, the Academic Personnel Policy sets forth the following criteria for promotion to an assistant professor position: (1) teaching effectiveness; (2) scholarly and professional growth, consisting of achievement or potential shown through, for example, "evidence of research in progress leading toward scholarly

publication" or "publication in professional journals;" (3) service to the institution; and (4) service to the public. (Academic

15

Personnel Policy at 6-7, 9). The plaintiff's assertion that the selection committee strayed from these criteria is untenable. The defendants have shown that

the committee considered the candidates' scholarly publications as well as their teaching abilities and character traits, criteria that the Bylaws and Policy emphasize. The latter criteria are (Letter

addressed by each candidate's letters of recommendation.

of Xiaobo Lu dated Oct. 7, 2002, attached to Holdaway Application, at 1. ("Jennifer is an excellent teacher. . . . Jennifer is also

a very mature and balanced person."); Undated Letter of Stuart A. Bremer, attached to Mousseau Application, at 2 ("[Michael] is a conscientious and dedicated teacher . . . . Michael is a mature

and responsible individual who gets along well with others."); Letter of Rudra Sil dated Aug. 9, 2002, attached to Ripsman Application, at 2. ("Ripsman will make a first-rate addition to any department, as a researcher, teacher, and colleague."); Letter of Richard M. Pious dated December 4, 2001, attached to Wishnick Application ("Elizabeth is a delightful person and a splendid colleague. . . . She worked hard . . . for her students while at Letter of to Zhu

Barnard [and] received fine course evaluations. . . .); Charles W. Kegley, ("I Jr. dated been Aug. very 1, 2002,

attached by [Mr.

Application

have

impressed

Zhu's]

intellectual capability and professional maturity. . . . It is not surprising to me that students' evaluations indicate he is one of

16

the best-rated professors/instructors in the department.")). Although it may have put more emphasis on some criteria than on others, the selection committee does not appear to have departed from the criteria in CUNY's Bylaws and Policy. If an employer

decides to weigh some qualifications more heavily when selecting candidates, it is inappropriate for a court to question this value judgment absent some plausible showing that the employer's stated reasons are a pretext for discrimination. Scaria v. Rubin, 117

F.3d 652, 654-55 (2d Cir. 1997); Byrnie v. Town of Cromwell Board of Education, 243 F.3d 93, 103 (2d Cir. 2001) (internal quotations omitted) ("[T]he court must respect the employer's unfettered discretion to choose among qualified candidates."). It is not the

role of a court to "act as a super personnel department that second guesses employers' business judgments." Simms v. Oklahoma ex rel.

Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1330 (10th Cir. 1999); accord Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). The plaintiff also attempts to show pretext by focusing on the difference between his qualifications and those of Mr. Zhu, the candidate who did not have a Ph.D. at the time of his application. (Pl. Response at 37, 51). Dr. Tsaganea posits that because Mr.

Zhu was so unqualified for the professorship he was set up as a straw man so that Dr. Ripsman could be selected. 51). (Pl. Response at

However, as the defendants point out, Mr. Zhu was to receive

17

his Ph.D. in 2003, the year the professorship was to start, and thus he would meet CUNY's requirements. Application). (Halper Decl., ¶ 22; Zhu

Additionally, Mr. Zhu had many more publications

than Dr. Tsaganea. Finally, the plaintiff relies on purported statistical

evidence to support his theory that the selection process was rigged to hire a Jewish candidate. (Pl. Response at 52-53). To be

sure, a plaintiff may use employment statistics to show a pattern of discrimination. as be to McDonnell [the to Douglas, 411 U.S. at 805 and `the

("[s]tatistics practice may

defendant's a

employment of

policy

helpful

determination

whether

defendant]'s refusal to rehire [the plaintiff] . . . conformed to a general pattern of discrimination . . . ."). However, Dr.

Tsaganea's statistics do not support his theory that CUNY conspired to hire only Jewish candidates. He cites data from 2006 from the

American Jewish Committee to claim that "the probability of hiring a Jewish person under non-biased condition[s] is . . . 1.78%." (Pl. Response at 52). That figure, however, merely represents the

percentage of Jewish persons in the population of the United States. Therefore, the analysis is incomplete, as it does not take into account the number of Jewish persons on one hand and Eastern Orthodox or Romanian persons on the other who hold Ph.D.s from qualified universities. Simplistic data showing the percentage

population of an ethnic group does not paint a picture of disparate

18

treatment when qualifications for hiring are not equally shared among the population at large. Mayor of City of Philadelphia v. Also,

Educational Equality League, 415 U.S. 605, 619-21 (1974).

because of the miniscule sample size, the statistics proffered here likely have no significance even if the analysis had controlled for qualifications. Id. at 620-21 (rejecting "simplistic percentage

comparisons" as indicia of discrimination due in part to small sample size); International Brotherhood of Teamsters, 431 U.S. at 339 n.20 (1977) (small sample size may detract from probative force of statistics). Therefore, nowhere in Dr. Tsaganea's papers does he present adequate evidence to show that CUNY's selection of candidates with more numerous and prestigious publications as well as more positive recommendations was a pretext for discrimination. Tsaganea's arguments are conclusory and could Because Dr. not lead a

reasonable trier of fact to rule in his favor, I recommend granting the defendants' motion for summary judgment with respect to the plaintiff's claims of discrimination. C. Retaliation Claim

The plaintiff also asserts that Baruch College retaliated against him by declining to renew his substitute teaching contract after he voiced objection to the tenure-track hiring process. As

discussed above, Dr. Tsaganea wrote a letter of complaint to the Chancellor of CUNY in February 2003 after learning the he had been

19

denied

an

interview

for

the

assistant

professor

position.

(Tsaganea 2/17/03 Letter at 1-2).

In the February Letter he

alleged that "the decision not to interview him constitutes a case of flagrant job discrimination." (Tsaganea 2/17/03 Letter at 2).

In addition, he characterized the decision as "deeply immoral," "un-American," and "illegal." (Tsaganea 2/17/03 Letter at 4).

Subsequently, CUNY's Vice Chancellor for Faculty and Staff Relations, Brenda Richardson, instructed CUNY's Affirmative Action Officer, Carmen Pedrogo, to investigate Dr. Tsaganea's claim of discrimination. (Pedrogo Decl., ¶ 1, 3). After interviewing

members of the selection committee and analyzing the applications of the other candidates, Ms. Pedrogo found no evidence of

discrimination.

(Pedrogo Report at 6-7).

In March 2008, Dr. Tsaganea received a handwritten note from Dr. Halper stating: Doru [Y]ou'd asked [] about teaching here next fall. As I said when we last talked, a week or so ago, we won't be needing many [International Relations] adjuncts, and so we won't be using your services Tom Halper (First Admin. Compl., ¶ 9; Rule 56.1 Statement, ¶ 40; Note of Dr. Thomas Halper, attached as Note")). In April 2003, the plaintiff filed his complaint of Exh. 16 to Colucci Decl. (the "March

20

discrimination with the SDHR. When Dr. Ripsman declined the tenuretrack position, an opening became available for a substitute professor position. (Halper Decl., ¶¶ 24-25). Upon learning of

the opening, Dr. Tsaganea sent two letters to Dr. Halper in May 2003 requesting a continuation of his current position. (Tsaganea

5/12/03 Letter; Tsaganea 5/19/03 Letter). In the second letter, he explained that he had filed formal grievances with the SDHR and the EEOC and suggested that Dr. Halper's failure to allow him to continue as a substitute professor could constitute retaliation in violation of the New York Human Rights Law. Letter). (Tsaganea 5/19/03

Notwithstanding this warning, the Department hired Dr. (Halper Decl., ¶ 31). Dr.

Bernard in the substitute position.

Tsaganea asserts that Dr. Bernard was not comparably qualified to teach International Relations courses. (Pl. Response at 30).

Section 704(a) of Title VII provides in pertinent part that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for

employment . . . because he has opposed any practice by this sub chapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Likewise, New York Executive Law § 296(1)(e) makes it unlawful for "any employer . . . to discharge, expel or otherwise discriminate against any person because he or she has opposed any practices

21

forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article." Notably, "[t]o establish that his activity is protected

under Title VII, a plaintiff need not prove the merit of his underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed." Sumner v. United States Postal Service, 889 F.2d 203, 209 (2d Cir. 1990); accord McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001). In order to defeat a motion for summary judgment regarding a retaliation claim, a plaintiff must set forth evidence sufficient to permit a rational trier of fact to find [1] that [he] "engaged in protected participation or opposition under Title VII, [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001) (quoting Sumner, 899 F.2d at 208-09). Just as with the McDonnell

Douglas prima facie test, "[t]he plaintiff's burden at this stage is slight; [he] may establish a prima facie case with de minimis evidence." Shepard v. Frontier Communications Services, Inc., 92

F. Supp. 2d 279, 291 (S.D.N.Y. 2000); accord Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997). Here, the plaintiff

alleges that his substitute teaching contract was not renewed in the summer of 2003 as a result 22 of his informal and formal

complaints about being passed over for the tenure-track position. Specifically, the plaintiff claims that the February Letter to Chancellor Goldstein and his filing of a complaint with the SDHR constituted protected activity. The defendants concede that the plaintiff's April 2003 filing of his complaint with the SDHR constitutes protected activity under Title VII and the NYHRL. (Memorandum in Support of Defendants'

Motion to Dismiss the Complaint dated March 31, 2008 at 9 n.5).8 Additionally, it is clear that Baruch College was made aware of this complaint through Dr. Tsaganea's May 19, 2003 letter to Dr. Halper. (Tsaganea 5/19/03 Letter; Def. Memo. at 13). The decision

not to renew Dr. Tsaganea's teaching contract was also undoubtedly an adverse employment action. "The weight of authority supports

the proposition that failure to renew an employee's contract may constitute an adverse employment action." McFarlane v. Chao, No.

The defendants argue that my August 28, 2008 Report and Recommendation in this case, which concerned the defendants' motion to dismiss, forecloses the plaintiff's retaliation claim based on the filing of the SDHR complaint. (Def. Memo. at 21). In that opinion, I found that the plaintiff had set forth a valid claim of retaliation on the basis of the February Letter, but I also wrote that "[Dr.] Tsaganea clearly could not have been terminated in retaliation for filing the [SDHR] complaint" because he "filed his first complaint with the SDHR on April 8, 2003, more than a month after he was informed by the head of the department that his contract would not be renewed." Tsaganea, 2008 WL 4054426, at *7. However, this statement was based solely on the facts alleged in the Complaint and not on the more detailed factual record that has developed during discovery. As discussed below, it is now clear that the March Note, upon which the defendants base their assertion that the plaintiff's employment was foreclosed before he filed the SDHR complaint, is at best ambiguous. 23

8

04 Civ. 4871, 2007 WL 1017604, at *23 (S.D.N.Y. March 30, 2007); see also Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) (refusal to rehire plaintiff following protected

activity provides basis for retaliation claim).

However, the

question remains whether a "retaliatory motive" played a part in this adverse employment action. In order to defeat a summary judgment motion, the plaintiff must show that a causal connection could have existed between his protected activity and the adverse employment action. "The causal

connection can be established . . . indirectly by showing . . . that the adverse action closely followed the protected activity." Dean v. Westchester County District Attorney's Office, 119 F. Supp. 2d 424, 432 (S.D.N.Y. 2000); accord Sumner, 899 F.2d at 209; DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987). Here, the defendants concede that the plaintiff

was denied a substitute position for the 2003-2004 school year shortly after notifying Baruch College that he had filed his complaint with the SDHR. (Def. Memo. at 13; Halper Decl., ¶ 31).

They explain that "despite" the plaintiff's May 19, 2003 letter "threatening" that failure to hire him would constitute

retaliation, they hired a different candidate for the substitute position. (Def. Memo. at 13; Halper Decl., ¶ 31). This sequence

of events provides sufficient evidence of a causal connection. However, the defendants allege that they precluded all future

24

employment of Dr. Tsaganea in March 2003, before the plaintiff filed his complaint with the SDHR. Decl., ¶ 28). (Def. Memo. at 12, 23; Halper

They assert that the March Note "informed the

plaintiff that Baruch College would no longer need his services as an adjunct assistant professor" and thus foreclosed further

employment.

(Def. Memo. at 22-23).

The defendants reason that

once the plaintiff was denied this lower ranking position, "the handwriting was on the wall" that he would not be reappointed to the higher ranking substitute teacher slot. (Def. Memo. at 23).

The plaintiff, on the other hand, argues that the March Note indicated that there were no teaching positions available at the time but did not prevent him from being to be hired in the future. (Pl. Response at 48). Indeed, Dr. Halper admits that a substitute

teaching position opened up after Dr. Ripsman declined the offer for the tenure-track position in May 2003, and he implies that he considered Dr. Tsaganea for that position. (Halper Decl., ¶ 25).

Specifically, Dr. Halper explained that he was "disinclined" to offer the plaintiff the position because he was "unhappy" with the plaintiff's performance as a substitute during the previous year.

(Halper Decl., ¶¶ 25-27). In further support of his characterization of the March Note, Dr. Tsaganea asserts that in late May or early June of 2003, Dr. Halper offered him an adjunct position teaching American

Government.

(Pl. Response at 31).

While Dr. Halper admits to

25

offering Dr. Tsaganea such a position, he contends that this offer was made prior to the March Note. (Halper Decl., ¶ 28). These

factual disputes relating to the timing and meaning of the March Note are further grounds for denying summary judgment. Dr. Tsaganea argues that even if the March Note precluded further employment, he had previously engaged in protected activity when he wrote the February Letter to CUNY's Chancellor. Response at 6). (Pl.

To demonstrate that he has engaged in protected

activity, a plaintiff need only have "taken, or threatened to take, some action to protest or oppose illegal discrimination." Correa

v. Mana Products, Inc., 550 F. Supp. 2d 319, 327 (E.D.N.Y. 2008). Protected activities can include "informal protests of

discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting

against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges." Sumner, 899 F.2d at 209. Whether the February letter falls within the scope of

protected activity is a close question.

Although "courts construe

the `protected activity' language liberally, there must be some form of [] indicia of a complaint made against an unlawful

activity."

Moran v. Fashion Institute of Technology, No. 00 Civ.

1275, 2002 WL 31288272, at *8 (S.D.N.Y. Oct. 7, 2002). On one hand, the letter focuses on the differences between the

26

plaintiff's political views and those of his colleagues.

Thus, it

is quite possible that the illegality of which he complained concerned his rights under the First Amendment rather than those under Title VII. See Williams v. Home Depot U.S.A., Inc., No. 02

Civ. 5353, 2005 WL 2429421, at *15 (S.D.N.Y. Sept. 30, 2005) (plaintiff's complaint to employer's "Alert Line" not considered protected activity because plaintiff did not allege form of

discrimination prohibited by Title VII). Furthermore, although the plaintiff's letter to Chancellor Goldstein alleges "illegal" and "flagrant job discrimination," it does not specify the purported basis for the discrimination -- that is, whether it was based on national origin, religion, or some other protected classification. (Tsaganea 2/17/03 Letter). On the other hand, the plaintiff alleged in his letter that CUNY's decision not to interview him for the tenure-track position constituted "illegal" discrimination. 4). (Tsaganea 2/17/03 Letter at Additionally, the fact

See Correa, 550 F. Supp. 2d at 327.

that the Chancellor's office initiated an investigation by CUNY's Affirmative Action Officer may indicate that CUNY understood his letter to be a grievance about unlawful discrimination. See

Germany v. New York State Department of Correctional Services, No. 03 Civ. 148, 2005 WL 2036027, at *3, *18 (S.D.N.Y. Aug. 17, 2005) (plaintiff's internal complaint mentioning "unprofessional

behavior," retaliation, and harassment, without alleging racial

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