Irwin Stern v. Trustees of Columbia University in the City of New York

CALABRESI, Circuit Judge,

dissenting:

I do not disagree with the majority that Stern has.made out a prima facie case of discrimination in violation of Title VII. It is clear that he has done so. But unlike the majority, I believe that his prima facie case is precisely the kind of minimal one discussed in this court’s in banc decision in Fisher v. Vassar College, 114 F.3d 1332, 1336-37 (2d Cir.1997) (in bane). It is likewise indisputable that the university responded to Stern’s prima facie case by proffering evidence of a non-discriminatory reason for its hiring decision. The majority believes that Stern presented evidence to allow a reasonable jury to infer .that the explanation given by the defendant was pretextual and that discrimination was the real ground for defendant’s actions. I disagree. Based on the facts presented, and the legally permissible inferences that may be drawn from those facts, I think that no factfinder could reasonably conclude that the defendant’s explanation was false and, as required by Fisher, that bias was the true basis for the university’s decision. Because this is so, the defendant was entitled to judgment as a matter of law. I therefore respectfully dissent.1

This case comes before us on motion for summary judgment. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is *315entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). We must construe the record in the light most favorable to the non-movant, in this case the plaintiff, drawing all permissible inferences in his favor. See, e.g., id. at 255, 106 S.Ct. at 2513; Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.1995). The inferences drawn must be supported by the evidence, however, and “mere speculation and conjecture” is insufficient to defeat a motion for summary judgment. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (internal quotation marks and citations omitted). Moreover, “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252, 106 S.Ct. at 2511; accord Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir.1996).

I believe that there are two overarching flaws in the majority opinion. First, in evaluating the relative qualifications of the candidates, the majority has improperly substituted its own standards for the standards of the employer, which is incorrect as a matter of law. This is both wrong and deeply dangerous, as a majority of the court in Fisher v. Vassar College clearly affirmed when it joined a statement to that effect in my separate opinion in that case. See Fisher, 114 F.3d at 1361 n. 13 (Calabresi, J., concurring in part and dissenting in part). Second, in reviewing the evidence, the majority engages in speculation and conjecture that is unsupported by the record and that is inappropriate even in the context of a summary judgment motion. To illustrate these two flaws, I will point out seven problems that I have with the majority’s treatment of the evidence in this case. There are more. The ones I will discuss relate to: (1) the plaintiffs allegedly superior credentials; (2) the fact that some members of the search committee did not know Spanish; (3) the attempt to hire Frances Boyd; (4) the allegedly irregular search procedure through which Augustus Puleo was hired; (5) the alacrity with which Puleo was hired; (6) Stern’s testimony that a member of the Department had told him that the Department was looking for more Hispanic members; (7) the testimony of James Crapotta that the department was not taking Stern seriously as a candidate.2

1.

The majority remarks on “Stern’s superior qualifications, experience, and recommendation.” Ante at 312. This is a blatant example of the tendency of courts improperly to substitute their own standards for those of the employer. See Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986) (“This court does not sit as a super-personnel department that reexamines an entity’s business decisions.”). The majority relies on the facts that Stern (1) was proficient in Portuguese as well as Spanish; (2) was familiar with the language program; (3) had more publications than Puleo; (4) had received a Ph.D.; and (5) had 25 years of teaching experience. But the first three credentials do not speak at all to the qualifications Columbia set out in its M.L.A. job announcement.3 The fourth, at most, gives a pepper*316corn of preference to Stern.4 And the fifth, while it relates to a criterion — teaching ability — that Columbia deemed crucial, in no way identifies Stern as the better teacher (as anyone who has had a brilliant “new” teacher and a dreadful “highly experienced” one knows).

Significantly, none of the five factors the majority emphasizes reflect the reasons given by the defendant for not hiring Stern. Columbia stated that it hired Puleo over Stern because Puleo was a better teacher and administrator. In comparing the qualifications of the candidates, the court is required to focus on these two criteria. It may not substitute its own. See, e.g., Scaria v. Rubin, 117 F.3d 652, 654-55 (2d Cir.1997) (per curiam).

When Columbia’s criteria are isolated, it becomes clear that there is no genuine issue of material fact easting doubt on the school’s legitimate decision that Puleo was more qualified than Stern. It is true that, as the majority opinion notes, Stern received very good teaching evaluations during his tenure as an interim Director. Puleo, however, also had excellent teaching evaluations from running a larger language program at the University of Pennsylvania. Moreover, the parties do not dispute that while the class that Stern taught gave him a lukewarm reception after his model teaching, the class that Puleo instructed broke into spontaneous applause. Once again, it may be that the committee gave more weight to the model classes than the majority or I might deem wise. But they had a right to do so, because to do so did not constitute discrimination. And the fact that they chose to emphasize this aspect of teaching — rather than the aspects that Stern or the majority, had they been members of the search committee, might have judged to be more important — in no way raises an issue of material fact.

Stern also has not raised a genuine issue of material fact with respect to the search committee’s assessment that Puleo was a better administrator. The parties do not dispute that while Stern was evaluated as having strong organizational skills, he was also accused of creating “bureaucratic monsters.” They also do not dispute that Puleo had significant administrative experience running the language program at the University of Pennsylvania and that the reports about him as an administrator there were glowing and free from any criticisms or questions.

It is simply inappropriate for a court to act “as a super-personnel department that reexamines an entity’s business decisions.” Dale v. Chicago Tribune, 797 F.2d at 464; cf. Fisher v. Vassar College, 114 F.3d at 1361 n. 13 (Calabresi, J., concurring in part and dissenting in part) (footnote joined by a majority of the in banc court). The Second Circuit very recently reaffirmed this position when it addressed a similar dispute over qualifications in Scaria, 117 F.3d at 654-55. In that case, the plaintiff claimed that he was more qualified than the person chosen for a supervisory position at the IRS because he had more years of schooling than the successful candidate. On the other hand, the successful candidate had a superior knowledge of IRS internal procedures, having worked for the IRS for a longer period of time. The court stated that “[a]s between experience .and education, the IRS elected to value the first over the second in filling the job, and there is nothing to show that this value judgment was pretextual.” Id. Likewise, there is nothing to show that Columbia’s decision to value teaching and administrative skills over other qualifications was pretextual. Cf. Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C.Cir.1996) (“Title VII liability cannot rest solely upon a judge’s determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

2.

Second, the majority notes the fact that three of the five members of the search committee did not speak Spanish. It suggests that this might cast doubt on Colum*317bia’s assertion that teaching ability was a key factor. It might, therefore, be evidence of pretext and hence of discrimination.

Here again the court substitutes its own standards for those of the university. It is not for the court to conclude that lack of knowledge of Spanish would preclude these three members (who were all language teachers from other departments) from evaluating a Spanish teacher’s skills in running a class. And, as the district court pointed out, this ostensible deficiency applied equally to all three finalists in the job search.

More important, it is difficult to see how the lack of Spanish expertise could constitute any proof of discrimination. Indeed, one might have guessed the opposite, that inclusion of non-Spanish speaking language teachers could serve as a counterweight to those who might have valued “native” language ability more than generalized teaching skills. If anything, in other words, it might have run against the very “pro-Hispanic” bias that Stern conelusorily claims. The point, once more, however, is not whether it did this or not. It is only that Columbia had a right to use the committee it did.

3.

Third, the majority emphasizes Vice President Meisel’s effort to appoint Frances Boyd, whom the plaintiff alleges was less qualified, without following the University’s normal affirmative action procedures. The majority states that this would permit “a factfinder to disbelieve the University’s claim that in selecting Puleo it had merely adhered to those procedures.” Ante at 310. I do not disagree that if Boyd had been appointed, Stern might well have had a jury case. But Meisel’s attempt to appoint Boyd was quickly quashed. And even if the attempt to hire Boyd could have suggested discrimination in favor of women, it in no way supports the discrimination that Stern claims occurred. The fact that a jury question might arise as to one kind of discrimination in no way means that it existed as to another, totally different sort. Cf. Fisher, 114 F.3d at 1349-50 (Jacobs, J. concurring).

4.

Fourth, the majority makes much of the “irregular procedure” through which Puleo was hired, which it characterizes as including the “unprecedented appointment of an interdepartmental search committee for a single-department position.” Ante at 310. While there is little if any proof in the record, other than Stern’s own self-serving testimony, that such a procedure was “unprecedented,” at summary judgment I am inclined to assume that the procedure was in fact not the usual one.

Still, and quite aside from the plaintiffs conclusory and hyperbolic allegations, two uncontested facts about the procedure used emerge. One, the department had stated before any search had occurred that it wanted to hire Stern, an insider who had the accouterments of scholarship that were not— under the job announcement — qualifications for the position at stake. Two, such a prejudged decision would have violated university rules. Under the circumstances, why is the appointment of an interdepartmental search committee in any way suspicious? Indeed, given the department’s undisputed pri- or actions, the appointment of just such an interdepartmental committee might have been essential to avoid charges of discrimination had Stern been selected.

I believe that on this issue the majority misses one of the key points of Fisher v. Vassar that applies by close analogy. Fisher held that even a pretextual answer (that is a he) may not be enough to make out a jury case. It depends, the majority said, on the strength of- the prima facie case and — crucially — the nature of the pretext. See Fisher, 114 F.3d at 1346-47. The same must, a fortiori, be true for deviations from ordinary selection procedures.

■ I do not doubt that there are situations in which the employment of an unusual search procedure points toward discrimination strongly and can create a jury question. See, e.g., Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir.1984) (“Departures from procedural regularity, such as a failure to collect all available evidence, can raise a question as to the good faith of the process where the departure may reasonably affect the decision.”) *318But there are also eases in which the use of such a procedure either points only very weakly towards discrimination or does not do so at all. Cf. Fisher, 114 F.3d at 1337-38. Even assuming then, as we probably must at summary judgment, that the procedure Columbia adopted was unusual, this is just such a ease.

Both the- administration and the department indisputably had proposed to fill the position in ways that would have given rise to a significant inference of some type of discrimination. The administration had done so when it proposed a direct provostial appointment of Boyd. The Department did it when it recommended the immediate appointment of Stern without following the required antidis-crimination search procedures. Under the circumstances, both traditional appointment methods (department and provostial) were suspect. What evidence of discrimination can then derive from the following of the usual form of appointment, but with non-department members added to the search committee? And the addition of non-department members, let us remember, is uncon-stestably the only allegedly “novel” aspect of this search.

We have long held that a “third motive,” or non-discriminatory reason other than the one given by an employer, for not hiring the plaintiff takes the sting out of a pretextual answer. See infra, part 7. Similarly, the existence of an indisputably good and nondiscriminatory external reason must surely remove any significance that might otherwise attach to the employment of an unusual search procedure. It must do so, at least, when the procedure employed is, on its face, in no way discriminatory.

Assuming, therefore, that Columbia deviated from its customary search practices, Stern has still showed no evidence that the alleged deviation in this case in any way pointed to bias. The appointment of such a committee in itself showed nothing about discrimination. Nor would the mere existence of the committee provide support for a jury to conclude that Columbia’s explanations were pretextual and that discrimination was the true basis for the hiring decision, because neither the makeup of the committee nor its procedures gives rise to a scintilla of evidence of pro-Hispanic bias, the bias which Stern alleges cost him the job.

5.

Fifth, the majority refers to the alacrity with which Puleo was hired. Again, the speed with which a person is hired does not say a solitary thing on the issue of discrimination. Moreover, since Puleo had, indisputably, just run a first-rate model class during his visit, it seems entirely natural for Columbia to move quickly to hire him. This is particularly true given that Columbia, again indisputably, had just lost one of its original three finalists, who had withdrawn from the competition for the job to go to another school. If the dispatch with which an employer seizes a top candidate is evidence of discrimination, then woe betide those members of the federal judiciary who make offers to clerkship applicants only moments after a successful interview. Columbia could move quickly or slowly, as it chose. Why the majority insists on seeing evidence of discrimination in such a manifestly neutral act is simply beyond me.

6.

Sixth, the court gives weight to Stern’s statement, made in an affidavit, that one search committee member had told him that the Department needed more Hispanic members. The statement in itself does no more than reiterate the goal of Columbia’s affirmative action plan. I do not doubt that the alleged statement, like the existence of a plan, can be the basis of a prima facie case— the presence of which, the district court assumed. The statement, however, does not add any evidence to what the existence of an affirmative action plan already introduced. One can repeat the goals of the plan twelve or twelve hundred times. Twelve or twelve hundred faculty members can assert them belief in those goals. But none of that does more than reaffirm what the plan by itself established. A minimal prima facie ease was made out. Under Fisher, that is not enough to preclude summary judgment. See Fisher, 114 F.3d at 1346-47.

*3197.

Seventh, the majority relies on the deposition testimony of James Crapotta as supporting a finding of discrimination. Crapotta, a Lecturer in Spanish at Barnard, called Grieve in her capacity as chair of the search committee to determine whether he would be competing with Stern if he applied for the director position. (He wanted to avoid this because he viewed it as not collegial.) Grieve allegedly told him that Stern was “not going to be seriously considered for this job,” which Crapotta took as encouragement to apply. This piece of evidence is significant because it is the only evidence in the case suggesting that Columbia’s explanation — that it hired Puleo over Stern because Puleo gave a better teaching performance — might be pretextual.

The majority’s construction of this comment as evidence of discrimination is nonetheless troubling, and ultimately self-defeating. Crapotta explicitly testified that Grieve did not state why Stern was not going to be considered for the job. More important, insofar as the comment had to be taken — given its undisputed context — as encouraging Cra-potta, a white male, to apply for the job, it is at most evidence that the committee was motivated by a dislike of Stern rather than by discriminatory animus against white males. In other words, if it supports the notion that Columbia’s explanation could be pretextual, it at the same time indicates a reason other than the one proffered that is clearly not discriminatory.

This court has repeatedly stated that such an alternative “third motive” non-discriminatory reason is sufficient to “explain away the proffer of a pretextual reason for an unfavorable employment decision.” Binder v. Long Island Lighting Co., 57 F.3d 193, 200 (2d Cir.1995). Thus, the possibility that such a reason might exist cannot preclude summary judgment. See Fisher, 114 F.3d at 1338 (“[I]f the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination [from the showing that the originally proffered explanation .is pretextual] will be weak or nonexistent.”).

In Fisher, we held that, despite the fact that the employer’s explanation was pretex-tual and despite the fact that the pretext did not point to a non-discriminatory third motive, a minimal prima facie case, plus a finding of pretext, was not enough to bar a summary judgment. See Fisher, 114 F.3d at 1344-47. In this case, following a minimal prima facie case, and a facially non-discriminatory explanation, the plaintiff introduces only one piece of evidence that suggests the possibility that the defendant’s explanation is pretextual. But that piece of evidence points — if it points anywhere — unquestionably to a non-discriminatory “third motive.” With all respect, I cannot understand how, under Fisher, this suffices-to make out a jury case.

The seven “factual” issues I discuss above are examples. They are not meant to be exhaustive. They are characteristic, though, of what is wrong with the majority opinion in terms of the many legally improper inferences that the majority draws from the record. In the end, once Stern’s self-serving and conelusory statements about his qualifications — which were not those Columbia deemed relevant for the position — are ignored, as they must be, very little remains. The whole of the evidence comes down to four things: a) Columbia had an affirmative action plan, in which it believed, that indicated that women and Hispanies were to be sought out (especially for the Spanish language department) but were not to be preferred in ultimate hiring; b) Columbia tried — perhaps improperly — to impose a non-Hispanic woman in the position and failed immediately; c) Columbia — for manifestly and uncontestedly good and non-diserimina-tory reasons — altered the normal search procedures by adding non-departmental language teachers to the search committee; and d) in trying to convince a qualified white male to apply for the job, a member of the search committee suggested that the plaintiff was a loser. I believe that, under the guidelines set out in Fisher, no reasonable factfin-der could, based on this record, find in favor of the plaintiff, and therefore that the district court’s grant of summary judgment to the *320defendant should be affirmed. Accordingly, I respectfully dissent.5

. I do not dissent from the portion of the majority opinion relating to the unsealing of the record.

. To the extent that I go beyond the district court’s analysis in responding to points made by the majority, I rely on the authority of this court to affirm a grant of summary judgment on any ground supported by the record. See, e.g., McNally Wellman Co. v. New York State Elec. & Gas Corp., 63 F.3d 1188, 1194 (2d Cir.1995).

. The job announcement did not mention proficiency in Portuguese, familiarity with Columbia’s language program, or academic publications as relevant criteria for selection. It is unsurprising that academic publications were not required. Scholarly performance is, in fact, rarely looked for in language teachers, as the majority could have readily ascertained had it not been misled, by Stem's own emphasis on his publications and their importance, into assuming the opposite. But what matters is not even whether other universities look to such credentials (a fact that Stem did not, of course, place in the record). What matters is that Columbia did not, and had a perfect right not to do so.

. While the job announcement said that a "Ph.D. was preferred,” it expressly stated that candidates who had completed all their Ph.D. work except a dissertation would also be considered. It is undisputed that Puleo was in the latter category, and expected to receive (and did receive) his Ph.D. within a year of the search.

. One further point deserves mention. This case is a reverse discrimination suit and is based on the claim that Columbia discriminated in favor of Hispanics. Many discrimination cases allege the opposite — that the employer hired a white male instead of a member of a traditionally discriminated against group. In the ordinary discrimination case, the fact that the plaintiff was a member of such a group and was qualified for a position filled by someone who was not in such a group is enough to make out a prima facie case. In a case like this one, the existence of an explicitly non-discriminatory affirmative action plan, together with the hiring of a member of a group covered by the plan, is enough to make out (the majority, the district court, and I apparently agree) a prima facie case of discrimination by a qualified person who is not in one of the affirmative action categories. The majority, on virtually no additional evidence, holds that the claim survives summary judgment. If the majority's holding is more than the aberration that I believe it to be, what is an employer to do? An expensive, frequently ugly, jury trial seems mandated whichever way the employer picks among qualified applicants, some but not all of whom are women, aged, or have minority status. Surely, that is not what Congress intended when it enacted Title VII.