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finding that university professor failed to rebut nondiscriminatory reason for his nonappointment to endowed chair by asserting that he had published more papers recently than selected candidate; the purpose of the endowed chair was to recruit from outside the university and the selected candidate was a "prominent scholar" whose published work was "momentous in the field"
Summary of this case from Leach v. Baylor College of MedicineOpinion
01 CIV. 10628 (DLC)
December 27, 2002
Neal Brickman, The Law Offices of Neal Brickman, New York, NY, For Plaintiff.
Arelene Smoler, Assistant Attorney General of the State of New York, New York, NY, For Defendant.
OPINION AND ORDER
Plaintiff Ravi Kulkarni ("Kulkarni") is a Professor of Mathematics at Queens College of the City University of New York ("CUNY"). In an action brought on November 26, 2001, he alleges that the defendants have discriminated against him based on his race and national origin in rejecting his requests for three different appointments within the CUNY system. Specifically, he contends that the defendants acted in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. ("Title VII"), by not appointing him in 2001 to the Mina Rees Chair in Mathematics at CUNY's Graduate School and University Center (the "Graduate Center"), and in violation 42 U.S.C. § 1981 and 1983 by not promoting him in 1998 to the position of Distinguished Professor and by their continuing failure to appoint him formally to a joint position with the Graduate Center and Queens College of CUNY. He also alleges retaliation for his opposition to the Graduate Center's "two-tier" structure. For defendants' alleged violation of Title VII, Kulkarni seeks damages. For defendants' alleged violations of 42 U.S.C. § 1981 and 1983, Kulkarni seeks injunctive relief, to wit, an order that defendants appoint him to the position of Distinguished Professor and to a formal joint position with Queens College and the Graduate Center. Defendants have moved for summary judgment.
Kulkarni also brought a disparate impact claim pursuant to Title VII. This claim was dismissed on June 13, 2002. Kulkarni v. City Univ. of N.Y., 01 Civ. 10628 (DLC), 2002 WL 1315596 (S.D.N.Y. June 14, 2002). Kulkarni's motion for reconsideration of the June 14 Opinion was denied. Kulkarni v. City Univ. of N.Y., 01 Civ. 10628 (DLC), 2002 WL 1969676 (S.D.N.Y. Aug. 23, 2002). By Order dated October 4, 2002, Kulkarni's request to replead his disparate impact claim was denied with an Opinion to follow.
For the reasons stated, defendants' motion is granted.
Background
The following facts are undisputed unless otherwise noted. Kulkarni is a South-Asian male of Indian birth. Upon the strong recommendation of CUNY Distinguished Professor and Albert Einstein Chair Dennis Sullivan ("Sullivan"), Kulkarni was appointed in 1986 as a full professor of Mathematics at Queens College of CUNY with a simultaneous appointment to the CUNY Graduate Center.
Distinguished Professor Appointment CUNY employs nearly 6,000 full-time faculty members. Under the terms of a collective bargaining agreement between CUNY and CUNY's Professional Staff Congress, the number of Distinguished Professor positions is limited to 125. Under CUNY's "Distinguished Professor Guidelines" (the "Guidelines"),
[t]he title of Distinguished Professor is conferred on an individual by the Board of Trustees in recognition of exceptional scholarly achievement. The preference for these appointments is to recruit and retain new faculty members whose appointments would enrich high priority academic units, especially when candidates require special incentives to influence their decision to accept an offer. These appointments are expected to contribute to CUNY's commitment to recruit and retain an excellent faculty representing a rich diversity of gender and ethnicity. (Emphasis supplied).
The Guidelines further state that "[i]n all but the most exceptional circumstances, candidates who have been rejected at either the initial or final screening may be renominated only once after a minimum of five years from the action."
The Guidelines specify that the appointment of Distinguished Professor proceeds according to a six-step process: (i) the nomination of the candidate by the candidate's home college in the CUNY system according to that college's internal nomination process, (ii) submission of the candidate's materials to CUNY's Chancellor's Office, (iii) solicitation by the Chancellor's Office of additional reviews, (iv) review by the Council of Presidents' Committee on Distinguished Professors (the "Council of Presidents' Committee") and recommendation to the Chancellor, (v) approval by the Chancellor and recommendation to the Board Committee on Faculty, Staff, and Administration (the "Board Committee"), and (vi) approval by the Board Committee. The Guidelines provide that the Board Committee will act on nominations at January and June Board Committee meetings, and that submissions from the candidate's home college to the Chancellor's Office must be received at least three months prior to the date on which the Board Committee will act on the nomination.
Louise Mirrer ("Mirrer"), CUNY's Executive Vice Chancellor for Academic Affairs, states that there are currently eight Distinguished Professors who hold appointments to the Graduate Center's mathematics doctoral program. Of these, one, Rohit Parikh ("Parikh"), is racially South-Asian. Kulkarni disagrees with Mirrer's count, and states that there are five Distinguished Professors who are mathematicians, all of whom are white men.
The Graduate Center's website lists Parikh as a member of the faculty of the Graduate Center's doctoral program in mathematics as well as in other subjects including computer science.
Neither Mirrer nor Kulkarni offer the names of the faculty whom they are counting. Kulkarni has presented evidence showing that, for the year 2000, three Distinguished Professors were "Asian American."
In 1988, Kulkarni was recommended by the Queens College Department of Mathematics (the "Queens College Math Department") for appointment as a Distinguished Professor. His nomination was rejected, however, by the Queens College personnel and budget committee, which chose not to forward his candidacy to the Queens College President for further consideration. In 1992, he was again nominated by the Queens College Math Department. It is unclear from the record whether the Queens College personnel and budget committee forwarded Kulkarni's nomination to the Queens College President. In any case, the Chancellor's Office never received the nomination.
Kulkarni was nominated again for a Distinguished Professor position in 1998. This nomination was forwarded by the Queens College President to the Chancellor's Office. Because the Chancellor's Office did not receive Kulkarni's nomination and supporting documents until the end of March 1998, he was not considered for a Distinguished Professor position at the summer meeting of the Council of Presidents' Committee, but rather at the next meeting. The Council of Presidents' Committee solicited letters of reference for Kulkarni in October 1998. During the relevant period, this committee consisted of three rotating members, all of whom were Presidents of one of CUNY's nineteen colleges, one non-voting President who served as an alternate, and Mirrer.
Mirrer states that Kulkarni's nomination was rejected because, in the opinion of the Council of Presidents' Committee, his letters of recommendation were not strong enough to merit his appointment as a Distinguished Professor. Kulkarni has submitted copies of approximately twenty letters of reference received by the Council of Presidents' Committee with respect to his application. They are consistently highly positive. Mirrer also states that Kulkarni's nomination was rejected because he did not qualify for the "preference" established in the Guidelines, in which Distinguished Professor appointments were designed to "recruit and retain new faculty members . . . especially when candidates require special incentives to influence their decision to accept an offer."
Mirrer further notes that the Council of Presidents' Committee members were "particularly disturbed" to read a letter concerning Kulkarni submitted by Professor Allan L. Edmonds of Indiana University. Edmonds wrote that he considered Kulkarni to be "a strong full professor. But I would have trouble imagining him as a distinguished professor." Edmonds further wrote:
Mirrer states that at her direction, a Council of Presidents' Committee staff member contacted the Director of the American Mathematical Society to request the names of mathematicians in Kulkarni's field who were qualified to evaluate his scholarship. Among the five names suggested was Edmonds'.
I must say that I was distressed while looking over his detailed CV to notice his inflated and inaccurate description of Thesis Direction on page 6. Kwak (Jin Ho) was in no way his student at Indiana. And neither was Charles Frohman. These people certainly had classes from him, but the thesis direction was wholly Ewing's in the former case and wholly mine in the latter. . . . Given this outrageous inclusion in the CV, I hearby [sic] decline to comment further. (Emphasis supplied).
Mirrer states that upon receiving Edmonds' letter, the Council of Presidents' Committee undertook an investigation of Edmonds' claims. Mirrer states that she asked the Acting University Dean for Research Alvin Halpern ("Halpern") to contact Edmonds and Professor Ewing ("Ewing") as well as Jin Ho Kwak ("Kwak") and Charles Frohman ("Frohman"). According to Mirrer, Edmonds and Ewing both stated that they, and not Kulkarni, had served as the relevant dissertation advisors, and Kwak and Frohman both denied that Kulkarni had served as their dissertation advisor. Mirrer states that when the Council of Presidents' Committee received this information, it decided not to recommend Kulkarni's candidacy to the Chancellor.
Kulkarni has testified that he has personally spoken with Kwak and Froham and that they told him that they had not been contacted by CUNY. Kulkarni does not, however, present admissible evidence from either Kwak or Frohman or say when he spoke with the two. Kulkarni also states that the Council of Presidents' Committee should not have read Edmonds' letter because Kulkarni and Edmonds have co-authored three articles and it is "the stated policy at CUNY" that a letter of reference written by a co-author of a job candidate may not be considered.
Kulkarni does not identify where this policy is stated. Finally, Kulkarni asserts that he worked with Kwak and Frohman "very extensively throughout their graduate student days."
In his deposition, Kulkarni was asked if he had read the dissertations of Kwak and Frohman. He responded that he had not. Professor Linda Keen ("Keen"), a Professor of Mathematics at Lehman College, CUNY, with a simultaneous appointment at the CUNY Graduate Center, has submitted a declaration in which she asserts that "it would be inappropriate and unethical for a mathematics professor to state on his C.V. that he provided `Thesis Direction' for a student whose thesis that professor has never read."
Kulkarni's Candidacy for the Mina Rees Chair in Mathematics In 2000, Kulkarni applied for the newly-established Mina Rees Chair in Mathematics at the CUNY Graduate Center. The only other endowed chair in Mathematics at the CUNY Graduate Center is the Albert Einstein Chair, which has been occupied by Sullivan for the last two decades. Sullivan served as a member of the Mina Rees Chair Search Committee (the "Mina Rees Committee").
Keen also served as a member of the Mina Rees Committee.
Sullivan and Keen state that the Mina Rees Committee reviewed the files of all applicants and then met as a group to discuss whom they should invite to give a talk on campus. They further state that the committee did not have a separate discussion on each applicant. Rather, each committee member spoke out in favor of any applicant on the applicant list. Keen states that "we were eager to use the very rare recruiting opportunity offered by the endowed chair to bring in someone new."
Of the seven individuals invited by the Mina Rees Committee to give a talk on campus, all were white men. Keen states that the Mina Rees Committee advertised their search on the Employment Information in Mathematical Sciences ("EIMS") website in part because certain professional organizations, such as the Association for Women in Mathematics, link directly to the EIMS website. The committee was also briefed by the Graduate Center's Affirmative Action Officer (the "AAO") regarding efforts she was making on behalf of minority recruiting. The AAO informed the committee that she had forwarded copies of the search announcement to, among other organizations, the Asian American Federation of New York, and SAHKI, a professional organization of Asian-American women.
The Mina Rees Committee chose Professor Viktor Kolyvagin ("Kolyvagin"), who was at the time the J.J. Sylvester Professor of Mathematics at Johns Hopkins University. Prior to that, from 1988 to 1993, Kolyvagin was a member of the Steklov Mathematical Institute of the Russian Academy of Sciences. Defendants have submitted three letters of reference they received in support of Kolyvagin's candidacy. Professor Karl Rubin ("Rubin"), Professor of Mathematics at Stanford University, stated:
In a series of papers in the late 1980's, culminating with his paper Euler systems in 1990, Kolyvagin produced a truly spectacular piece of work. . . . I personally have spent most of the past ten years exploring and exploiting the possibilities opened up by Kolyvagin's work. In my opinion this work of Kolyvagin was of Fields Medal quality. On the other hand, Kolyvagin's research output since his Euler systems paper (and a couple of follow-up papers) seems to be less than one might have hoped. I leave it to you to decide whether or not his research production over his entire career makes him the best candidate for your position. (Emphasis supplied).
Professor Richard Taylor ("Taylor"), Professor of Mathematics at Harvard University, stated in his letter of reference:
[Kolyvagin's] is an unusual case. He has one piece of extremely important work, which came out in the mid-80's and nothing else of anywhere near comparable importance. Thus the case for his appointment must be based on this one piece of work. Usually an appointment on the basis of one piece of work is a dangerous thing, but in this case the danger is mitigated by the extensiveness of this one piece (several long papers) and the fact that it contains two or three fundamental new ideas. [Kolyvagin's work on Euler systems] is one of the greatest discoveries in number theory in the last 25 years. I would place it behind Faltings' Mordell conjecture paper and behind Wiles' Fermat's last theorem paper, but otherwise it is arguably the most important result. It has been extremely influential. Kolyvagin's technique and variants theoreon have been used repeatedly by other authors in major papers. For example by Rubin, Flach, Kato, Kolyvagin, Mazur . . . [.] (Ellipsis in original; emphasis supplied).
Professor Kenneth A. Ribet, Professor of Mathematics at the University of California at Berkeley, stated in an email to the Mina Rees Committee:
The work that Kolyvagin did in the 1980s is absolutely fundamental in number theory and arithmetic geometry. He invented the concept of "Euler systems" . . . . Among the world experts on Euler systems, one finds Karl Rubin, Anthony (Tony) Scholl and Kazuya Kato. . . . [Kolyvagin's] appointment at CUNY would probably be to his benefit and to CUNY's. (Emphasis supplied).
For his part, Kulkarni asserts that Kolyvagin's "publication record shows that he published 8 papers in 1981-1990, and 5 in 1991-2002. . . . By contrast . . . my publication record shows that I have published about 30 papers in 1968-1980, and 40 papers in 1981-2002."
In declining to support Kulkarni's candidacy for the position, Sullivan states:
[T]hough [Kulkarni] was roughly at the level to be considered for the job, and his application was not inappropriate, he was not the most qualified candidate. In addition, he was already a member of the Graduate Center faculty, and if we selected him, or any other internal candidate, we would have been wasting a golden recruiting opportunity to add to and enhance our department. (Emphasis supplied).
Keen states that Kulkarni's work "has not had the same impact as Professor Kolyvagin's work." Professor Jozef Dodziuk, Professor of Mathematics at Queens College, CUNY, with a simultaneous appointment at the CUNY Graduate Center, was also a member of the Mina Rees Committee. He asserts that Kolyvagin has been short-listed for the Fields Medal, which mathematicians consider to be the equivalent of the Nobel prize in their field, and states that Kulkarni is "simply not in the same league."
At his deposition, Kulkarni was asked: "Who has knowledge, if anyone, that you were denied the Mina Rees Chair as a result of discrimination?" Kulkarni replied: "I do not know." He was then asked: "You don't know of anyone who knows that?" He replied: "No." Kulkarni was also asked: "What information do you have that the decision by the Mina Rees Search Committee not to recommend your appointment for the Mina Rees Chair was motivated by discrimination?" He replied: "I sense it, yes." He was then asked: "Other than sensing it, what?" He replied: I don't know.
I don't know. I have no information why I was rejected." Kulkarni's Request for a Formal Joint Appointment The CUNY Graduate Center has a 1,600 member faculty comprised of approximately 1,500 scholars who are based at one of the nineteen CUNY colleges, and approximately 100 scholars who hold full-time Graduate Center appointments. Of the Graduate Center's 1,600 faculty members, thirteen currently hold "formal joint appointments" with the Graduate Center and another CUNY college. The record is not clear as to what a formal joint appointment entails, but it appears to permit its holder to teach more courses to graduate students at the Graduate Center and fewer courses to undergraduates in their home colleges.
Specifically, in Kulkarni's case, Kulkarni currently teaches one course at the Graduate Center every third semester. If he were given a formal joint appointment, he would be assigned to teach a course at the Graduate Center every semester.
None of the current holders of formal joint appointments are mathematicians. Of the current appointees, five hold the rank of Assistant Professor, three hold the rank of Associate Professor, four hold the rank of Professor, and one holds the rank of Distinguished Professor. Distributed according to their disciplines, three appointees are in Sociology, three are in Anthropology, two are in Art History, and the fields of Biology, Psychology, Political Science, Linguistics, and Music are each represented by one appointee. During the sixteen years that Kulkarni has been employed by CUNY, no mathematician has ever received a formal joint appointment with the Graduate Center.
Kulkarni claims that he first applied for a formal joint appointment in 1994. He has submitted a copy of a letter dated September 6, 1994 written by John A. Thorpe ("Thorpe"), Provost of Queens College, to Geoffrey Marshall, Provost of the Graduate Center, in which Thorpe requests that Kulkarni be granted a "joint appointment, two thirds at Queens College and one-third at the Graduate Center." Kulkarni has also submitted a copy of a letter dated November 7, 1994, which he wrote to Stephen M. Curtis ("Curtis"), Acting President of Queens College, in which Kulkarni explains that the "executive committee of the Ph.D. [p]rogram in Math" has rejected the request that he be given a "joint [Queens College]/[Graduate Center] appointment." In the letter, Kulkarni requests an appointment with Curtis to discuss the matter. The copy of the letter contains a notation at the bottom of the letter which reads "Discussed w[ith] Pres[ident] 11/10/94." It is not clear from the record who made this notation. The 1994 request is apparently the last request by Kulkarni for a joint appointment, apart from his suggestion to the Mina Rees Committee in 2000 that it consider "making the Rees Chair a joint appointment with a college."
William P. Kelly ("Kelly"), Provost and Senior Vice President for Academic Affairs of the Graduate Center, states that teaching assignments at the Graduate Center "are based primarily on curricular needs, rather than faculty preferences."
Kelly further states that "[a]t the present time, and during the foreseeable future, an increase in the number of courses that Professor Kulkarni teaches at the Graduate Center does not promote the curricular needs of the University." Kelly also states that under the terms of the bequest that established the Mina Rees Chair, the holder of that chair would be required to teach exclusively at the Graduate Center and would not be able to hold a joint appointment with any college in the CUNY system.
Retaliation
Kulkarni states that he was denied various positions at the Graduate Center not only because he is Asian, but also out of a "motive for retaliation." Specifically, Kulkarni states that he has since 1988 taken "a determined ethical stand" against the two-tier structure by which the Graduate Center's faculty consists of approximately 1,500 college-based faculty and approximately 100 full-time Graduate Center faculty. In his testimony, Kulkarni also alleges that the Graduate Center administration has been involved in sending false reports to New York State regarding how full-time Graduate Center faculty fulfill their workload. He further alleges that, as a consequence of "blatant politics," the CUNY administration has caused resources to be shifted from the colleges to the Graduate Center. Kulkarni states that "many of the G[raduate] C[enter] appointments are political in nature."
Kulkarni states that the rejection of his application for the Mina Rees Chair "was clearly in retaliation for the ethical stands" he has taken and that the rejection of his application for a Distinguished Professor position was also "in retaliation for the public stand I have taken against the two-tier structure of doctoral [sic] faculty."
Kulkarni states that he was told by Dodziuk, "Ravi, you are not going to get a joint appointment from me." According to Kulkarni, Dodziuk further stated: "If I do not have a joint appointment, why should you get one?" Finally, according to Kulkarni, Dodziuk advised him to "be aware of people's jealousies."
Standard Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
The substantive law governing the case will identify those issues that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 2002) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the Court must view all evidence in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
Discussion I. Kulkarni's Title VII Claim
Kulkarni's discriminatory failure to promote claim is analyzed under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
"In order to make out a prima facie case of discriminatory failure to promote, in violation of Title VII, a plaintiff must show that (1) he is a member of a protected class, (2) he was qualified for the job for which he applied, (3) he was denied the job, and (4) the denial occurred under circumstances giving rise to an inference of discrimination on a basis forbidden by Title VII." Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000). At summary judgment, the plaintiff's burden of making a prima facie showing is "de minimis." Id. (citation omitted).
If the plaintiff establishes a prima facie case, he "creates a presumption that the employer unlawfully discriminated, and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action." James v. New York Racing Assn., 233 F.3d 149, 154 (2d Cir. 2000) (citation omitted). If the employer provides evidence of a nondiscriminatory reason for its employment decision, the plaintiff must "adduce admissible evidence that would be sufficient to permit a rational finder of fact to infer that the employer's proffered reason is pretext for an impermissible motivation." Howley, 217 F.3d at 150. Even with such a showing, however, "the plaintiff is not entitled to judgment unlesshe shows that the challenged employment decision was more likely than not motivated, in whole or in part, by unlawful discrimination." Id.
Kulkarni has made a prima facie case of discrimination.
Defendants do not dispute that he is a member of a protected class and that he was denied the appointment to the Mina Rees Chair. Furthermore, Kulkarni was arguably qualified for the position. Finally, Kulkarni has met his "de minimis" burden of describing circumstances giving rise to an inference of discrimination. Of the seven candidates invited to campus to give talks, all were white.
Defendants have proffered non-discriminatory reasons for their decision to hire Kolyvagin rather than Kulkarni.
Specifically, defendants have presented strong evidence that Kolyvagin was a far more qualified candidate for the position than Kulkarni. While Kulkarni argues that he produced more articles than Kolyvagin, defendants have presented evidence unrebutted by Kulkarni that Kolyvagin's discovery of Euler systems was a truly momentous achievement, one that alone exceeded in importance Kulkarni's many less significant publications. In addition, Kolyvagin has been short listed for the prestigious Fields Medal; Kulkarni has not. It should not detract from Kulkarni's own distinguished career in mathematics to recognize that there are other mathematicians, and the defendants have shown that Kolyvagin is one, who have surpassed him in their accomplishments. Furthermore, defendants have presented evidence also unrebutted by Kulkarni that the Mina Rees Committee sought to recruit a prominent scholar from outside of the CUNY system in order to add to and enhance their faculty.
Kulkarni has failed to present admissible evidence raising a question of fact as to whether any of defendants' proffered explanations for their hiring of Kolyvagin is pretextual.
Kulkarni's only argument is that Kolyvagin's letters of reference were not unequivocally positive whereas his letters of reference were. Specifically, Kulkarni points out that both Rubin and Taylor noted that Kolyvagin had not produced anything of comparable significance since his papers on Euler systems. This fails, however, to rebut defendants' evidence that Kolyvagin was and remains the superior mathematician, nor does it address the desire of the Mina Rees Committee to enhance CUNY's mathematics faculty by recruiting from outside CUNY. Finally, Kulkarni has failed entirely to offer evidence from which a jury could find that the rejection of Kulkarni by the Mina Rees Committee was motivated by discriminatory animus.
II. Kulkarni's Section 1981 and 1983 Claims A. Distinguished Professor Claim
Kulkarni claims that defendants failed to promote him to the position of Distinguished Professor in 1998 out of discriminatory animus, in violation of 42 U.S.C. § 1981 and 1983. Kulkarni seeks an order that defendants appoint him to the position. This claim is evaluated under the burden-shifting analysis set forth in McDonnell Douglas and described above. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (Section 1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 n. 1 (1993) (Section 1983).
Kulkarni has made out a prima facie case of discriminatory failure to promote him to the Distinguished Professor position.
He is a member of a protected class, was denied an appointment to the position, and was arguably qualified for it, as his many letters of reference show. Furthermore, he has met his minimal burden of describing circumstances giving rise to an inference of discrimination. Kulkarni contends that none of the current faculty members in mathematics at the Graduate Center who are Distinguished Professors and only three of the Distinguished Professors in the entire CUNY senior college system are "Asian American."
Defendants have proffered three non-discriminatory reasons for their decision not to offer Kulkarni an appointment as a Distinguished Professor. While Kulkarni has raised a question of fact with respect to one, to wit, whether his letters of reference were sufficiently strong, he has not even addressed the second reason offered by defendants for their decision, namely, that they did not need to recruit or retain him by means of the Distinguished Professor position.
With respect to the third reason — Edmonds' letter — Kulkarni has failed to produce any evidence to suggest that when the Council of Presidents' Committee relied on Edmonds' letter, they were doing so not because of the substance of the letter, but out of discriminatory animus. Nor has Kulkarni presented any admissible evidence to support his claim that the committee was barred by CUNY policy from taking Edmonds' letter into consideration. The issue is not whether Kulkarni did in fact serve as a dissertation advisor to Kwak and Frohman. The issue is whether there is any evidence showing that the Council of Presidents' Committee acted out of discriminatory animus in their consideration of Edmonds' letter. Kulkarni has failed to raise a question fact that they did.
Kuklarni also argues that certain "procedural irregularities" associated with his nomination raise a question of fact as to the good faith of the nomination process. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104 (2d Cir. 2001) (noting that employer's procedural irregularities in hiring may raise a question as to the good faith of the process).
Specifically, Kulkarni notes that although his nomination was forwarded to the Chancellor's office in March, defendants did not request letters of reference for him until October. Defendants have shown that the Council of Presidents' Committee requires that it receive candidates' material three months in advance, and that the committee meets twice annually. The solicitation of letters in October is consistent with preparations for the winter meeting of the committee.
Kulkarni also alleges a procedural irregularity in connection with the Council of Presidents' Committee's solicitation of a letter of reference from Edmonds. Specifically, Kulkarni states that the list of Kulkarni references that defendants used in 1998 shows that on "10/14" Edmonds "declined" to offer a reference for Kulkarni, and that the committee must have nevertheless sought out a letter after that date from Edmonds. Kulkarni argues that "CUNY obviously persisted in pursuit of [Edmonds'] letter; this despite the fact the Vice-Chancellor's Office was suppossed to decide on the nomination within a month."
Kulkarni's argument is based on a misunderstanding. Edmonds' letter is dated October 14, and concludes with Edmonds' declining to comment further on Kulkarni given Kulkarni's "outrageous inclusion in the CV." This was noted in defendants' list of Kulkarni references as Edmonds' declining to comment.
B. Formal Joint Appointment Claim
Kulkarni contends that defendants refused to provide him with a formal joint appointment. There are many deficiencies with this claim. Suffice it to say that Kulkarni has failed to present any evidence showing that a formal joint appointment was even a possibility for a mathematician or that he was denied such an appointment under circumstances giving rise to an inference of discrimination. Kulkarni does not dispute that no mathematician has ever received a formal joint appointment during the entirety of his tenure at CUNY. Kulkarni has presented no evidence regarding the thirteen faculty members who do hold a formal joint appointment, out of CUNY's 1,600 member faculty, that would give rise to an inference of discrimination against him. Kulkarni's assertion that the appointments are "political in nature," if anything, supports defendants' argument that Kulkarni was not denied a formal joint appointment on account of racially discriminatory animus.C. Retaliation
Kulkarni has not pleaded as a separate cause of action any claim for retaliation, and he does not suggest in his brief on this motion that such a claim has been made. The reason for the absence of such a claim is readily apparent. Although Kulkarni asserts in his declaration that the decisions to reject his applications for certain appointments, including for instance the appointment to the Mina Rees Chair, were retaliatory, he does not identify any protected activity that would support a claim of retaliation under either Title VII or Section 1981. For instance, Kulkarni does not assert that he ever complained of discrimination and that those complaints led to the decisions rejecting him for the appointments at issue here. See Holtz v. Rockefeller Co., 258 F.3d 62, 79 (2d Cir. 2001) (to establish a prima facie case of retaliation under Title VII, plaintiff must show, inter alia, that he engaged in protected activity and that his employer was aware of that activity).
Conclusion
For the reasons stated, defendants' motion for summary judgment is granted. The Clerk of Court shall close the case.
SO ORDERED: