*1 3Q5 eligibili gibility. [Chapter the amount of debt for Since no further event 13] was ty purposes.... trigger responsible-person vast [T]he Mazzeo’s liabili- State, ty courts have held that the existence of a dis to the and since the amount of that pute underlying liability liability over either the or easily ascertainable from the returns, automatically the amount of a does not dispute debt filed tax appli- as to the contingent unliqui- cability render the debt either or responsible-person statute to (internal omitted)). quotation dated.” marks him does not make his debt the State agree majority position. We contingent unliquidated. either “unliquidated” “disput Code uses both argu- We have considered all of Mazzeo’s “claim”; ed” in its definition of to rule that appeal ments on this and have found them (and claim hence debt with which is no basis for reversal. The order of the dis- coextensive) unliquidated is it is whenever affirming trict bankruptcy court’s disputed “unliq- would be to render the term Chapter petition dismissal of the is af- surplusage. interpre mere uidated” Such an firmed. debtor, simply by tation would also allow a characterizing disputed, certain claims as eligibility proceed Chap
ensure his under Congress plainly
ter 13 circumstances chapter.
intended to éxclude from that We given
conclude that effect must be to both
terms, agree and we with the Eleventh Cir
cuit
concept
liquidated
that “the
of a
debt
liability,
relates to the amount of
not the
STERN, Plaintiff-Appellant,
Irwin
liability.”
existence of
United States v. Ver
dunn,
tive debt State amount of YORK, TY THE IN CITY OF NEW $381,451.99 readily least can be ascertained Defendant-Appellee. statutory provisions tax and from the 1626, No. Docket 95-9137. returns filed Westfield. The amount of withholding State tax that Westfield should Appeals, United States Court of paid pay and did not for 1993 and two Second Circuit. quarters company’s as shown on the State, quarterly tax returns filed with the Argued May 1996. $404,492.88. law, totaled York Under New Decided Dec. liability “equal Mazzeo’s to the total paid amount of the tax ... not ... over.” claim, 685(g). §
N.Y. Tax Law The State’s returns, $381,451.99.
based on those purposes proceedings,
For of these the dif figures
ference between those two is immate
rial, for Westfield’s returns revealed that the paid $381,-
amount due and not was at least
451.99. We conclude that the State’s claim liquidated.
CONCLUSION sum, claim, where unsecured
though disputed, noncontingent is both
liquidated, the debt that is coextensive with
that claim must be included calculation Chapter
that determines the debtor’s 13 eli-
306 brief), Defendant-Ap- City, on for
York pellee. WINTER, Judge, KEARSE
Before: Chief CALABRESI, Judges. Circuit dissents, separate Judge Calabresi opinion.
KEARSE, Judge: Circuit appeals from final Plaintiff Irwin Stern judgment Dis- entered United States of New trict for the Southern District Court Baer, Jr., York, Judge, dismissing Harold complaint alleging that defendant Trustees (“Columbia” Columbia “University”) requested posi- him a denied origin, in tion because of his national viola- Rights Title Act of tion of VII the Civil (“Title VII”), § seq. 42 2000e 1964 U.S.C. et (1994). granted the The court Uni- district versity’s judgment for dis- motion that, complaint ground missing the on presented evi- though Stern sufficient case, prima dence to establish facie second-guess nondiscrim- would not inatory proffered by reason for its selection of another candidate. On summary judg- appeal, Stern contends gen- improper ment was because there were uine fact to be tried. For the issues of follow, agree, reasons that we and we there- for fore vacate the and remand proceedings. further
I. BACKGROUND present controversy centers on the The Spanish Language position of Director Program (“Language Program” or “Pro- gram”) (the
Spanish Portuguese “Department”). Program, Department prin- Through Spanish cipally provided instruction in the language undergraduate some 750 45 graduate approximately students in sec- elementary tions and intermediate semester, approxi- taught by courses each Karlin, Roy City (Shapiro, York Beil- New mately teaching assistants. Fox, City, ly, Rosenberg, & New York Albert Stern, a white American male of Eastern brief), Plaintiff-Appellant. acting director of the European origin, (An- Goldstein, City Program in when it was Mark L. York 1991-1993. New Morris, drea H. full-time director should be Stempel, & New decided Goldstein By years’ appointed year beginning experi- the academic had some 25 applied position. teaching college-level ence in courses University, adopted Portuguese language which had an affirmative and litera- plan pursuant sought action to which it out ture. He had served on editorial boards candidates, qualified minority ap- journals, professional women of several had edited *3 Puleo, pointed Augustus as director an college-level more than 40 on textbooks literature, Hispanic American male of descent. Stern Spanish language and and had despite extremely published Spanish Portuguese contends that his own his own and recommendations, strong and grammar scholarly credentials he textbooks and works. genuine opportunity was never afforded a compete with from the candidates Universi- University’s B. The Action Affirmative
ty’s preferred groups. Plan
Preliminarily,
appeal
note that
has
we
this
Throughout
period,
the relevant
it was the
in
arrived
this Court with the entire record University’s policy
faculty
was to be
sealing
sealed. We see no basis for the
of
regard
hired without
to invidious factors such
this, particularly in
entire record such as
the
race, color, religion, age,
or national ori-
summary judgment
context
a motion for
of
gin.
University
had an affirmative ac-
North,
granted.
Joy
v.
See
692
(the “Plan”),
plan
applicable
to all of its
(2d
denied,
880,
Cir.1982),
F.2d
cert.
460
departments
(collectively
schools and
“de-
1051,
1498,
U.S.
103 S.Ct.
Executive complete Department, initially considered renewable without faculty members University’s in accordance with the search position available vote to define the (Letter Program.” Affirmative search for a full-time Action to initiate whether Meisel, faculty Provost Jonathan R. Cole to dated member. Once an affir- nontenured 1.) taken, May Depart- In June Department’s mative vote was permission reappoint ment received an advertisement to be draft Chair would year on same for a second basis. Vice President submitted approval. ap- All Sciences for for Arts and 1, 1992, On after was decided October response advem plications submitted Program full-time should Depart- then be read tisement would Martinez-Bonati, director, Depart- Felix committee, the most ment’s Meisel, Chair, requesting ment’s wrote *4 being by applications reviewed the promising position, con- authorization to announce the non-Department Executive Committee and search, the duct the normal and select best adjunct faculty and persons members such as however, University, had candidate. The Spanish Department Bar- members of the at Spanish Department identified the as one of (“Barnard”). strongest College The nard departments in the Humanities that three then to candidates would be invited interview “targets recruiting” to be for selective occasion, and, present to faculty minority faculty. (Recruiting of Tomorrow’s University Department facul- a talk at the to Faculty: the Minorities in Arts and Sciences students, final ty, graduate or others. The 2.) Further, the Graduate School at to made to candidate be decision as each was by Meisel, in considered “direct intervention” Committee, Department’s Executive by the department to the form of communications representative Bar- from a input with chairpersons participation negotiations nard. faculty, prospective with be the “most to way” increasing effective of the number of Spanish Directorship the Lan- C. The of (Office faculty senior female members. of Program guage Action, Equal Opportunity and Affirmative Evaluation, mid-1991, Sep- then-Director the Annual Review and dated In the of 6.) Therefore, Barnwell, tember at instead of Language Program, David Spanish granting Department’s request to adver- resigned. Barnwell recommended that Stern successor; faculty position Department’s tise the director and conduct a nor- be his search, Department mal unanimously University’s The af- Meisel informed the concurred. Boyd, planned appoint permitted department that he Frances a plan action firmative search, Language Senior Lecturer following a limited or American position fill a circumstances, Depart- search, Program who had consulted with the in certain no concerning Language Program open to an ment position left due when a performed study on the effectiveness In those circum- occurrence. unforeseen Program, position of the director for a stances, the Plan period years. qualifications University’s of three Her for Provost a waiver seek from position search re- included M.A. of the Plan’s affirmative-action literature, language and an Ed.D. in Adult quirements. In the wake Barnwell’s .unan- Curriculum, year Department’s Education and one ticipated resignation,, Chair teaching Spanish college level. recommended to the Provost that Stern interim, appoint Boyd, made proposing to Meisel appointed replace Barnwell on an University’s of the normal search mention part-time for the 1991-1992 academic basis procedures. year. granted Department Department strongly opposed ap- The
The Provost Boyd (though emergency pointment clearance for as director affirmative-action conducted) study appointment; he Martin valued the she had Stern’s notified Meisel, praised work as interim director of then-Vice President Stern’s Sciences, Program: Language “should be Arts and that Stern 1.) faculty graduate and the students of The five-member committee ... think rare una- appointed by Department Meisel was headed job nimity that has done only [Stern] as Professor Patricia Grieve and included language program director of the since Department. one other member from the extraordinarily 1991 has been successful The other three members were in lan- other impossible top. Depart- and indeed Our guage departments University (respec- language program ment’s a model Russian, now Italian, tively, and East Lan- Asian Departments of other instructors read, write, guage); they speak, did not or being Dr. consulted some of Spanish. understand help improve language them to them their completion After screening of its initial teaching.... think that can [Stern] We process, the search committee determined professional lan- be said to be true Kenya y its first choice was Dworkin guage teaching, if even he did not obtain a Mendez, female, Hispanic accepted but she methodology pedagogy Ph.D. in but elsewhere before an interview literary studies.... arranged. could be The committee subse- graduate Several of our students are quently applicants: three interviewed a white taking language courses of at various other woman, Puleo, American and Stern. Stern’s Departments .... [and candidacy supported by Depart- told me that the have] courses that Chair, ment’s who wrote a letter of recom- *5 taking Departments are at are far those again praising mendation Stern for his work methodology and to inferior materials Program: as interim director of the the ones themselves teach. The lan- guage program Spanish Portuguese and program Stern has directed the insu- has never been done better.... dedication, perable every attention to de- tail, prompt response and to usual (Letter from Martinez-Bonati to Meisel and emergencies generated by illness of in- 25,1992, Roger Bagnall, Dean dated October Moreover, structors and the like. he has 3-4.) Department recognized The given intense and sustained attention to existing procedures prevented appoint- methodological improvement of the a full-time ment of Stern on basis without a program, conception both in its overall and search, faculty and it stated that “[t]he by [teaching in its execution each of the that, directly reap- if cannot be thinks Stern Preceptors. and He in- assistants] has pointed, to to fill a formal search has be done spired duty discipline a strict sense (Letter position.” from Martinez-Bonati graduate in our students and has been 1.) Meisel, 25, 1992, at to dated October uncompromising observing these stan- attempt ap- Meisel retreated from his testimony quality dards. It is a to the Boyd summarily point posi- to the director his work that the strict standards he de- that, agreed conformity (enforced graduate mands of the students University’s policies, affirmative action needed) with serious measures when Normally, search should be conducted. great popularity among resulted in his position for a in a search for candidates respect him them. The students and like single University department, such as the emphatically way approve of the he here, position director at issue would be con- program. conducts the comprising by a search committee ducted department.- depar- years grow- In In members of that the last one and a half University’s past practices, ing emerged Depart- consensus has ture from the however, appointed interdepart- regarding ment As I ex- Meisel Stern’s work. (the pressed mental committee “search com- last semester to President search Vice mittee”). letter, interdepartmental in a we think that the The committee Martin Meisel language program Department has in the belief that was created appointed if never better conducted than under would have Stern been (Draft direction, impossible “left to its own devices.” letter from and that Stern’s Meisel, April top performance. Search Committee to dated his (Letter criminatory University’s Martinez-Bonati from Professor basis deci- Grieve, facts, Chair Search Committee Patricia sion could inferred from the inter Coordinator, alia, January dated Language qualifications that his for the 1.) Puleo; superior to those of University prescribed deviated from its own interviewing three final addition practices seeking posi- to fill the director candidates, the search committee tion; (“model officials had ex- class”), a class each of them to teach pressly would not be indicated Stern of the committee. Af- observed members seriously classes, position. considered He model observing the the search ter pointed Puleo. The commit- out that of the three candidates hired interviewed, had reported that Puleo demonstrated whom the search committee tee teaching only Stern’s teach- was the candidate who had re- excellence doctorate; The offer to Puleo was ex- oth- ing was weak. ceived a that neither of the extensively weeks after in- approximately tended 1& ers had written as terview; officer, University’s ombuds college-level teaching experi- as much complained ence; about denial of actually whom Stern and that excelled in Stern had application, viewed the search com- running during ap- his own Program his interim make final decision to the offer to receiving glowing mittee’s pointment, commendation having been made with “unusual Puleo performance capacity. for his in that He rapidity.” pointed seeking that in to fill the also out position, the had more than once complaint to the officer ombuds Stern’s procedures. normal deviated University’s to the referred Associate early attempt deviations included Meisel’s Provost, complaint in turn referred the who Boyd following appoint as director without found no Meisel merit in Stern’s to Meisel. normal affirmative action that the decision had been made suggestion procedures permitting a factfinder to dis- — origin. national basis of on the *6 University’s in believe the claim that select- ing merely Puleo it to those had adhered Present Action The D. procedures; unprecedented appointment the present the action commenced Stern interdepartmental of an search alia, University alleging, inter the against single-department position; for a the and overarching appoint desire to in its that disregard of plan’s the affirmative action to faculty, minorities the and Uni- women recognition responsibility applying that for from its ac- versity deviated affirmative had judgmental primarily criteria must rest with refused, had because of his plan and faculty In the of the involved. origin, give him fair consideration national case, out, pointed though this Stern the De- position. University The for the director partment emphasized had the to hire a need summary judgment, relying prin- moved in director who could teach courses Portu- from Grieve and Meisel on affidavits cipally entirely guese, ignored the search committee concerning affirma- documentation and need; that of the three candidates inter- University stated policies. tive action viewed, only proficiency had in Stern Portu- legitimate, based on non- Puleo hired that guese. discriminatory principally on Pu- reasons — teaching superior administrative and leo’s Stern a “sham” the characterized as search argued present- that Stern had skills—and teaching committee’s evaluation his skills that evidence to show these no admissible ed solely on the basis of his On model class. a pretext for discrimination. reasons morning, that a severe snowstorm cut stu- summary judgment, dent attendance more than half and sub- opposition to Stern In' affidavit, delayed stantially own various docu- arrival of those who his submitted attend, ments, deposition testimony forcing from a Stern to 50 minutes’ did cover material in minutes. He involved in the search worth of 30-35 number of individuals argued search committee further that process, including members not have formed with a view argued He dis- itself could been committee. search
3H candidate, finding qualified granted The court in the best however, University, University placed had on the committee a favor of the because it speak, of members who did not found that the had come forward write, read, Spanish. Though “documentary plain- or understand evidence to rebut purported unequal to have the committee relied tiffs claims treatment and ar- heavily respective gue[d] right employer on the skills in that it has the as an candidates’ classes, conducting qualified the model three hire the candidate it feels is best id., entirely in taught Spanish position,” classes were for the and that a court should Spanish vocabulary second-guess of lessons on consisted business decisions. language though argued structure. The three non- The court ruled that Stern Spanish-speaking University’s proffer of the committee members should be alia, of, inter acknowledged depositions pretextual light in in their viewed as qualifications, could not determine the model classes affirmative gave policy, irregularities correct instruc- action whether candidates followed, gave procedures argu- tions or whether students correct none of Stern’s University’s prof- answers. ments established pretextual. example, fer was For the court affidavit, In his stated that search Stern stated that the fact that the had committee member Professor Maria Carrion attempted appoint a woman without fol- Department him had told needed more lowing procedures its normal search “would addition, Hispanic members. Stern sub- against” pre- cut[ an inference of seem[ to] ] typewritten meeting minutes of a mitted the Department text had because fended off teaching between assistants and Id. at 605. The University’s attempt. 29,1992, recording Meisel on October Meisel rejected Stern’s contention that indicating, appointed even before he search committee’s evaluation of his model committee, “highly that it was unlike- sham, stating irregu- class that “the[ ] ly language return as [would] probably larities were the result of a snow- Finally, submitted the de- director.” interview,” day plaintiffs on the storm position testimony Crapotta, James “hardly pretextual established the mo- Barnard, then-Senior Lecturer Id. The court rejected tives decision.” who, considering apply whether appointment contention that the of a Stern’s director had called Grieve as Chair search committee whose did not of the search committee an effort to deter- competence Spanish, judge trenching on the mine whether he would be *7 teaching Spanish, skills of candidates was a Stern, regarded toes of whom he as a col- significant deviation from the league. Crapotta testified that Grieve told procedures pretext normal from which could going him that Stern was “not to be consid- (cid:127) departure The court found this be inferred. job.” seriously for this ered insignificant, stating that “[t]he Opinion In an and Order dated November five members for all consisted of the same 3, 601, 1995, reported F.Supp. at 903 candidates, above, and as stated three summary judgment granted district entity’s guess not second an busi- court will complaint. The court found dismissing the Id. ness decisions.” initially prima “can that Stern establish Judgment dismissing entered the com- was F.Supp. case.” 903 at 604. It found facie plaint, appeal followed. For the and this class”; “belongs protected to a follow, judgment. we vacate the reasons satisfactory perfor- nature of his acting Program mance as director was II. DISCUSSION position disputed; not that he was denied the director; of permanent prima that “if In order to establish a facie ease of viewed VII, in violation of Title a light plaintiff, most favorable to the it is discrimination plaintiff that he has denied impossible that could infer from the who asserts been not one (1) belongs that he to a plaintiff that the was discrimi- a must show circumstances (2) class, against.” Id. protected qualified that he for nated 312 (3) jury posi be verdict for that he was denied the must denied position, and/or (4) not,
tion,
the denial occurred in cir
plaintiff
must be sustained.
If
an
of
giving rise to
inference
summary judgment
cumstances
defendant is entitled
on the basis of his member
overturning
plaintiffs
discrimination
of
or to the
verdict
De
generally
See
Texas
ship
that class.
clearly
erroneous.
Burdine,
Community
v.
partment
Affairs
Id. at 1347.
6, 101
1089, 1094
248,
n.
S.Ct.
253 &
450 U.S.
(1981) (“Burdine
It
a mo-
”);
is of course well established that
6,
207
L.Ed.2d
& n.
67
summary judgment may not
tion for
Copy
Corp., 43
TRM
Centers
Chambers v.
37;
Thornburgh,
granted
F.2d
the court determines that
v.
928
unless
at
Rosen
F.3d
Cir.1991).
(2d
528,
genuine
has
no
issue of material fact to
Once
there is
532
prima
case of discrimina
presented a
facie
be tried and that the facts
to which there
tion,
produc
judgment
the burden
defendant-has
issue warrant
“
ing,
‘through the introduction of admissible moving party as a matter of law. See Fed.
which,
evidence,’
for its actions
56(c).
reasons
assessing
In
the record
R.Civ.P.
if
fact,
support
would
by the trier
issue,
believed
determine whether there is such
finding
discrimination was
that unlawful
ambiguities
court is
to resolve
employment action.” St
the cause of the
permissible
and draw all
factual inferences
502,
Hicks,
509
Mary’s Honor Center
U.S.
against
party
favor of the
whom
2747,
507,
2742,
315
evidence,
reviewing
majority engages
entitled to a
as matter of law.”
56(c);
Corp.
speculation
conjecture
see also Celotex
v.
in
unsup-
Fed.R.Civ.P.
and
that is
Catrett,
2548,
317, 322,
ported by
477 U.S.
106 S.Ct.
inappropri-
the record and that is
(1986).
2551,
dispute
A
re
nick v. Federal Reserve Bank Newof substitute their own standards for those of (2d Cir.1996). 91 F.3d 382 employer. Chicago See Dale v. Tribune Co., (7th Cir.1986) (“This overarching I there are two 797 F.2d 464 believe First, majority opinion. super-personnel in in eval court does not sit as a flaws de- uating qualifications partment entity’s of the candi busi- the relative reexamines decisions.”). dates, majority majority improperly has substitut ness relies on the (1) proficient in Portu- ed its own standards for the standards facts (2) guese Spanish; employer, is incorrect as a matter of as well as was familiar which (3) wrong deeply danger language program; had more law. This is both (4) Puleo; ous, publications of the court in had received a as a Fisher (5) Ph.D.; years teaching College clearly affirmed when it had 25 Vassar joined my sepa experience. to that in But the first three credentials a statement effect Fisher, speak qualifications opinion in that case. See do not Co- rate (Calabresi, J., job in concurring n. lumbia set out its M.L.A. announce- F.3d at 1361 Second, fourth, most, dissenting part). gives pepper- in ment.3 The part go beyond publications required. that academic were not 2. To the extent that I the district by is, fact, analysis responding points made court’s Scholarly performance rarely looked rely authority majority, of this court I on the teachers, language as the could grant summary judgment any to affirm a misled, readily ascertained had it not been See, ground supported by e.g., the record. emphasis publications on his Stem's own McNally Wellman Co. v. New York State Elec. & importance, assuming opposite. their into (2d Cir.1995). Corp., 63 Gas F.3d not even other But what matters is whether (a credentials fact that universities look profi- job did not mention 3. The announcement not, course, record). place in the Stem did ciency Portuguese, familiarity with Columbia’s not, What matters is that Columbia did and had publications language program, or academic unsurprising perfect right not to do so. relevant criteria for selection. It is *11 316 fifth, having as And the that Stern was evaluated to Stern.4 while preference
corn of
skills, he
strong organizational
was also ac-
teaching
to a
abili-
while it relates
criterion —
crucial,
way
creating
cused
“bureaucratic monsters.”
in no
of
ty
deemed
Columbia
—that
(as They
dispute
do
Puleo had
also
not
that
as the better
teacher
identifies Stern
significant
experience running
“new”
administrative
had a brilliant
teacher
anyone who has
language
the
of
experienced”
program
one
the
“highly
a dreadful
knows).
reports
that
him
Pennsylvania and
the
about
glowing
an
there were
as
administrator
of the five factors the
Significantly, none
any
questions.
free
or
criticisms
giv-
reflect the reasons
majority emphasizes
hiring
for not
en
the defendant
Stern.
simply inappropriate
It
act
a
is
it
over
that
hired Puleo
Columbia stated
a
that
super-personnel
“as
reex-
was a
teacher
Puleo
better
Stern because
entity’s
Dale
amines an
business decisions.”
comparing
qualifi-
Tribune,
the
464;
and administrator.
Chicago
797 F.2d at
cf.
candidates,
re-
of
the court is
cations
n.
College, 114
at 1361
Fisher v. Vassar
F.3d
may
quired
on
two criteria.
It
(Calabresi, J.,
to focus
these
concurring
part and dis-
See, e.g.,
Scaria v.
(footnote
own.
majori-
not substitute
part)
joined by a
senting in
(2d Cir.1997)
Rubin,
court).
117 F.3d
654-55
ty of
The Second Circuit
banc
curiam).
(per
very recently
this
when
reaffirmed
dispute
qualifica-
a
over
addressed
similar
isolated, it
criteria are
Columbia’s
When
Scaria,
In that
tions in
Stern also respect the search com- three of five members material fact with speak Spanish. sug- It was a committee did not mittee’s assessment that Puleo better gests might parties dispute do not that this cast doubt Colum- administrator. undisputed job 4. "Ph.D. It is that Puleo was in latter While the announcement said (and preferred,” expressly stated that candi- category, expected to receive did re- completed dates who their work Ph.D. ceive) year the search. his Ph.D. within a except a dissertation would also considered. ability key teaching was a bia’s assertion therefore, might, be evidence of factor. It Fourth, makes much of the
pretext and hence of discrimination.
“irregular procedure” through which Puleo
hired,
including
was
which it characterizes as
its own
again
Here
the court substitutes
“unprecedented appointment
the
of an in-
university.
for those of the
It is
standards
terdepartmental search committee for a sin-
that
lack of
not for the court
conclude
gle-department
position.” Ante
at 310.
Spanish
preclude
knowledge of
would
these
any proof
While there is little if
in the rec-
(who
language
all
teach-
three members
ord,
self-serving
other
Stern’s own
testi-
departments)
evaluating
ers from other
from
mony,
procedure
“unprece-
that
a
was
such
running
teacher’s skills in
a class. dented,”
summary judgment I am
inclined
out,
And,
pointed
this
as the district
procedure
to assume that the
was in fact not
deficiency
equally
applied
ostensible
the usual one.
job
search.
three finalists
Still,
quite
plaintiffs
aside from the
conclusory
hyperbolic allegations,
two
important,
More
it is difficult to see how
procedure
uncontested facts about the
used
Spanish expertise
lack of
could constitute
the
One,
emerge.
the
had stated
Indeed,
any
one
proof of discrimination.
any
before
search had occurred that it want-
guessed
opposite,
inclu-
might have
Stern,
ed to hire
an insider who had the
language
non-Spanish speaking
sion of
teach-
scholarship
accouterments of
that were not—
counterweight
as a
to those
ers could serve
job
qualifications
under the
announcement —
might
language
have
“native”
who
valued
Two,
pre-
stake.
such
ability
generalized teaching
more than
skills.
judged
have violated
decision would
universi-
words, might
have run
anything,
If
other
it
circumstances, why
ty rules.
Under
very “pro-Hispanic”
against
bias
appointment
interdepartmental
conelusorily
point,
claims. The
once
any way suspicious? In-
search committee in
however,
more,
not whether
did this or
it
deed, given
department’s undisputed pri-
only
right
had a
not.
It is
Columbia
actions,
just
appointment
such an
use the committee
did.
interdepartmental
might
charges
been essential to avoid
of discrimina-
3.
tion had
selected.
Stern been
majority
I believe that on this issue the
Third,
majority emphasizes
Vice Presi
key points
misses one of the
of Fisher v.
appoint
Boyd,
Meisel’s effort to
Frances
dent
applies by
analogy.
close
Fisher
Vassar
alleges
qualified,
was less
whom
(that
pretextual
is a
held that even a
answer
following
University’s normal af
without
he)
jury
may
enough to make out a
not be
majority
procedures.
action
firmative
said,
depends,
case.
It
on the
permit
that this would
“a factfinder to
states
strength
prima
of-the
facie case and—crucial-
University’s claim that in se
disbelieve the
Fisher,
ly
pretext.
nature of the
See
—the
merely
lecting
it had
adhered to those
Puleo
must,
this search. motive,” or long held that a “third We have 6. non-discriminatory than the one reason other employer, hiring for not given an Sixth, gives weight court Stern’s pretextual sting plaintiff takes the out of statement, affidavit, made in an that one infra, Similarly, 7. part answer. See him search committee member had told that indisputably good and non- existence of Hispanic needed more mem- discriminatory surely reason must external bers. The statement itself does more any might significance remove that otherwise goal than reiterate the of Columbia’s affirma- employment an unusual attach to plan. tive action I do not doubt that least, so, It procedure. search must do at statement, alleged like the of a existence face, is, procedure employed when the plan, a prima can be the basis of facie case— way discriminatory. in no which, presence district as- therefore, statement, however, Assuming, deviat- sumed. The does not Columbia customary practices, any add of an ed from its evidence what existence alleged already plan has still no evidence that the affirmative action introduced. showed any way pointed plan repeat goals case in to One can deviation this twelve appointment a committee of such twelve hundred times. Twelve or twelve bias. faculty nothing in itself about discrimination. hundred members can showed assert them goals. But Nor would mere existence of the commit- belief those none of that does provide support jury plan by tee conclude more reaffirm what the itself explanations pretextual prima A minimal ease Columbia’s established. facie Fisher, enough that discrimination was the true basis for made out. Under not Fisher, decision, preclude summary judgment. the hiring See because neither makeup procedures nor its F.3d 1346-47. despite pretext tual the fact that the did non-discriminatory mo point not to a third Seventh, deposi- on the relies case, tive, prima plus facie a find a minimal Crapotta support- testimony of James ing pretext, enough was not to bar a finding Crapotta, a ing a of discrimination. Fisher, summary judgment. See 114 F.3d at Barnard, called Lecturer case, following In this a minimal 1344-47. capacity as chair of the search Grieve her case, facially prima he facie and a non-discrimi
committee to determine whether would competing applied if he natory explanation, with Stern introduces (He this position. director wanted to avoid only piece suggests of evidence that one collegial.) Grieve because he viewed as possibility explanation that the defendant’s going allegedly told him that Stern was “not pretextual. piece But of evidence seriously job,” which to be considered for this points points anywhere unquestion it—if — Crapotta encouragement apply. took ably non-discriminatory to a “third motive.” piece significant This of evidence is because how, respect, I cannot With all understand only suggesting it is the evidence case Fisher, jury under this suffices-to make out a explanation it hired Columbia’s —that case. *14 gave Puleo a better Puleo over Stern because pretextual. teaching performance might be — com- majority’s construction of this I The seven “factual” issues discuss above is none- ment as evidence discrimination examples. They are not meant to be are ultimately troubling, and self-defeat- theless characteristic, They though, exhaustive. are ing. Crapotta explicitly testified that Grieve wrong opinion of what is why going to be not state Stern was not did many legally improper terms of the infer- job. important, in- for the More considered majority draws from the rec- ences that the given had to sofar as the comment be taken — end, self-serving In ord. once Stern’s encouraging undisputed context —as Cra- conelusory qualifi- statements about his male, job, it potta, apply for the a white cations—which were not those Columbia committee was at most evidence position ig- for the relevant deemed —are by a dislike of Stern rather than motivated nored, be, very must little remains. discriminatory against white animus evidence comes down to The whole of the words, supports In if it males. other a) things: four Columbia had an affirmative explanation could be notion that Columbia’s believed, plan, action in which it that indicat- at the same time indicates a pretextual, Hispanies were to ed that women and be proffered other than the one that is
reason
discriminatory.
lan-
clearly
sought
(especially
out
pre-
guage department) but were not to be
repeatedly
has
stated that such
This court
b)
hiring;
in ultimate
Columbia
ferred
“third motive” non-discrimina-
an alternative
perhaps improperly
impose a non-
away the
tory
“explain
tried —
—to
reason is sufficient
and failed
Hispanic woman
pretextual
for an unfavor-
proffer of a
reason
c)
manifestly
immediately;
Columbia —for
Long
employment decision.” Binder v.
able
(2d
uncontestedly good
Co.,
193,
and non-diserimina-
Lighting
57 F.3d
Island
Cir.1995). Thus,
tory
pro-
such a
reasons —altered the normal search
possibility
preclude
by adding non-departmental
lan-
might exist cannot
cedures
reason
Fisher,
committee;
I dissent.5 CIARAMELLA, P.
Bernard
Plaintiff-Appellant, ASSOCIATION,
READER’S DIGEST
INC., Defendant-Appellee.
No. Docket 96-9638. Appeals, States Court of
United Circuit.
Second
Argued Sept. 1997. Dec.
Decided *15 court, apparently majority, I point case the district deserves mention. This One further agree) prima by suit and is based on is a reverse discrimination facie case of a a discrimination favor of the claim that Columbia discriminated in qualified person who is not one of affirma- allege Many Hispanics. discrimination cases categories. virtually majority, on tive action employer opposite a male hired white evidence, —that holds that the claim sur- additional traditionally a of a member of discrimi- instead majority's summary judgment. vives If the hold- ordinary against group. In the discrimina- nated ing is than the aberration that I believe it to more case, mem- the fact that the was a be, expensive, employer an to do? An what is qualified group ber ugly, jury frequently trial mandated seems by filled who was not in such someone way among quali- employer picks whichever enough prima group make case. is out facie applicants, are fied some but not all whom one, explic- a case like this the existence women, minority Surely, aged, or have status. itly non-discriminatory plan, affirmative action Congress it en- what intended when together hiring group a member of acted Title VII. (the plan, enough covered to make out