YA-CHEN CHEN, Plaintiff-Appellant, v. The CITY UNIVERSITY OF NEW YORK, Robert Paaswell, Individual and Official Capacity, Beth Lesen, Individual and Official Capacity, Richard F. Calichman, Individual and Official Capacity, Geraldine Murphy, Individual and Official Capacity, Defendants-Appellees.
No. 14-1469-cv.
United States Court of Appeals, Second Circuit.
Decided: Oct. 28, 2015.
Argued: March 25, 2015.
As to the claims asserted by the Anderson Group, if you found Saratoga Springs liable for disparate treatment (intentional discrimination), disparate impact discrimination, or perpetuation of segregation, please proceed to Question 7.
However, if you found Saratoga Springs not liable on all three of the Anderson Group‘s claims, please proceed to the next page (Page 8).
Question 7: What amount of compensatory damages do you award the Anderson Group as a consequence of Saratoga Springs’ discriminatory conduct?
Note: If you find no compensatory damages, you must award $1.00.
$ 1,000,000
David Lawrence III, Assistant Solicitor General, Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Defendants-Appellants.
Before: WINTER, LIVINGSTON, and CHIN, Circuit Judges.
Judge CHIN concurs in part and dissents in part in a separate opinion.
DEBRA ANN LIVINGSTON, Circuit Judge:
Beginning in September 2007, Plaintiff-Appellant Ya-Chen Chen served as an assistant professor of Asian Studies in the Department of Foreign Languages and Literatures at the City College of New York (“CCNY“), a school in the City University of New York (“CUNY“) system. She also acted as Interim Director of the Asian Studies program during the 2008-2009 academic year. As that school year drew to a close, Chen had a negative encounter with a student. Members of the administration—including Defendants-Appellants Beth Lesen, Richard F. Calichman,
Following her appeals, Chen filed suit against CUNY, Calichman, Lesen, Murphy, and Paaswell in the United States District Court for the Southern District of New York (Abrams, J.). She argued that CUNY violated
BACKGROUND
A. Factual Background
1. Chen‘s Employment at CCNY
CCNY is the flagship institution in the CUNY system. To identify and attract talented educators and scholars, the College hires them as assistant professors—a tenure-track position subject to annual review and renewal. Every year, an executive committee in each of CCNY‘s departments evaluates the assistant professors under its jurisdiction before deciding whether to reappoint them. The committees consider the candidates’ “teaching effectiveness,” “scholarly and professional growth,” “service” to the public and the institution, J.A. 180, and whether candidates demonstrate “satisfactory qualities of personality and character ... and [a] willingness to cooperate with others for the good of the institution.” J.A. 166. As assistant professors move closer to tenure, the evaluations become “progressively rigorous ... to reflect the greater expectations of more experienced faculty members.” J.A. 181.
In September 2007, Chen secured a position as an assistant professor of Asian Studies in CCNY‘s Department of Foreign Languages and Literatures. Chen, a Taiwanese woman, is a scholar in the fields of East Asian languages and cultures, Chinese comparative literatures, and women‘s and gender studies. She holds degrees from the National Sun Yat-sen University in Taiwan, Columbia University, and Purdue University, and has published three books and over twenty articles in academic journals.
During the 2007-2008 school year, Chen taught two Chinese courses in the fall, worked on two books and several academic articles, and undertook several projects within the Asian Studies program. In Chen‘s annual evaluation, Richard F. Calichman, the Chair of the Department of Foreign Languages and Literatures, recorded his impression of Chen‘s first year at CCNY in a memorandum dated June 2,
This academic year proved to be a fateful one for the Plaintiff-Appellant. Heading into the year, the President of CCNY appointed Chen as the Interim Director of the Asian Studies program. In addition to this role, Chen was scheduled to teach one of two introductory Chinese courses offered by the Department of Foreign Languages and Literatures during the spring. Spring semester began on January 28, 2009. That morning, Chen met a middle-aged male student (the “Student“) who had registered for her Chinese course. The Student‘s “persistent demands for [Chen‘s] time and attention,” in Chen‘s words, quickly became a problem. J.A. 60.
On that first day of classes, the Student, who had earlier written Chen to express his interest in taking her class, appeared at Chen‘s office for office hours and stayed there for about two hours until class began. He then attended class and, when the instructional period ended, waited for Chen before leaving the classroom. As Chen left, he followed her out the door, “talking with” her as she went from the classroom back to her office. J.A. 476. The Student engaged in similar behavior on two subsequent class days. Chen found his conduct strange, and she reports that she grew increasingly apprehensive on account of his behavior in these encounters. In an effort to show the Student that he was spending too much time in her office, Chen pointed out that “other people” had been waiting to speak with her “for more than ten minutes or fifteen minutes.” J.A. 480. She did not, however, tell him that he made her feel afraid or that she felt he was acting inappropriately.
After these three classes, Chen approached Calichman about the Student, described the situation, and asked that the Student be transferred out of her class. Chen says that Calichman “gave [her] verbal support” and “immediately approved to transfer” the Student to the other introductory Chinese course, effective February 5. J.A. 481. The Student appeared in the Asian Studies office shortly before Chen‘s scheduled classes on six subsequent days between February 5 and March 5. When he tried to speak with her on at least one occasion, Chen “just [said] hi and then immediately continue[d] to [her] classroom.” J.A. 484. These encounters stopped, however, in early March, and Chen thereafter had no contact with the Student for about two months.
At that point, at the end of April, Chen began to focus on class enrollment for the fall semester of 2009. Chen knew that she would be teaching the only upper-level Chinese course in the fall and she asked the other introductory Chinese professor about which students planned to continue with Chinese studies. The professor told her that the Student intended to register for the upper-level course. Concerned about dealing with the Student again, Chen sent Calichman an email explaining the situation. Calichman forwarded her message to John Reynolds, the Dean of CCNY‘s Humanities Division, who asked Deputy Dean Geraldine Murphy to meet with Chen about the situation. Murphy
The next day, Chen met with Lesen. Chen recalled that Lesen was “understanding and supportive,” and provided examples of how Chen could “set up boundaries with the student” if he joined her class—for instance, by informing him that he might “consider finding a tutor” so as to benefit from more individualized instruction than she could provide, or by reserving portions of her office hours for other students. J.A. 501-02. Shortly after the meeting, Lesen sent Chen a follow-up email asking her to “let me know how things go with that student,” and assuring her that, “if the situation does not improve after you have created some boundaries ... I will be able to step in and assist you further. Definitely keep me posted.” J.A. 442.
Chen “assumed” that this email was an instruction to meet with the Student immediately.1 J.A. 325. As a result, she arranged for a meeting between herself, the Student, and the Student‘s introductory Chinese professor, Chih-ping Ma, on May 13, 2009. At the meeting, Chen presented the Student with a form entitled “Ya-chen Chen‘s Written Document for [the Student‘s] Confirmation of Understanding,” which read:
According to Dr. Beth Lesen‘s opinion, I am writing down the rules for [the Student‘s] Participation in my CHIN 225 class in fall 2009. Professor Chih-ping Ma is the witness.
Chinese tutor as the front line for academic questions or learning problems
Maximum use of my office hours: five to ten minutes every week
Do not block the doorways of classrooms or offices
Keep an appropriate distance from professors and classmates
Class matters should be first brought to the instructor, not administrative heads
Harmony with classmates and respect for the instructor
Do not rush the instructor before the class starts
The instructor reserves the right to take actions against unpredicted or uncomfortable situations
J.A. 193. She requested that the Student sign it. He refused and immediately went to Lesen, expressing hurt and confusion and asking “why [Chen] had never told him that he was doing something she didn‘t like.” J.A. 189.
Chen appeared at Lesen‘s office later that day with the intention of informing Lesen that the Student had refused to accept the boundaries she set. According to Chen, Lesen reacted by faulting Chen for not “us[ing] stronger words to confront the student.” J.A. 509. To demonstrate what Chen should have done, Lesen “yelled very loudly at [her] and asked [her] to repeat a very, very simple English word, stop ... maybe six or eight times.” J.A. 509. Chen also claims that Lesen “indicat[ed] that [the Student] never ha-
Lesen presented a different version of events in an email to Calichman, Murphy, and Reynolds dated two days later. Describing the encounter as “one of the most frustrating meetings I have ever had with a professor,” Lesen reported telling Chen “that she should not have sought the student out when he is not currently in any of her classes ..., may not create any preconditions for registration ... [and] must communicate requests and allow students opportunities to change their behavior.” J.A. 189. Lesen added that Chen “spent hours (literally) refusing to accept any responsibility for her own actions, asserting that the student had done unacceptable things and should have ‘gotten the message’ that she was uncomfortable though she never once actually told him.” J.A. 189. Lesen also asserted that Chen “showed less than no concern for the student” and also “made clear that she does not have time in her schedule for students who require more attention than she is willing to provide, even if they seek that time during her office hours.” Id.
After receiving Lesen‘s email, Calichman scheduled a meeting between himself, Chen, and Murphy to be held on May 20, 2009. Chen says that Calichman did not give her a clear sense of what the meeting would cover, but it soon became clear that Calichman and Murphy wanted to discuss the incident with the Student. Chen reports that both Calichman and Murphy adopted Lesen‘s view of the situation, blaming Chen for not “stop[ping] the student with clear and stronger words.” J.A. 514. Calichman also presented Chen with a memo that, in his view, summarized the meeting. The memo states that he and Murphy advised Chen that it “is inappropriate to intervene with students who are not currently in one‘s class,” “to recruit other professors for help in such intervention,” “to present and pressure [students] into signing a contract-like document listing certain conditions that must be satisfied in order for students to enroll in [a] course,” and “to conduct what is, in effect, a smear campaign against [a] student[ ].”2 J.A. 195. Chen signed this memo to confirm that she had read it and noted that she would write her own summary of the events.
The next day, Calichman again met with Chen to present his evaluation of her performance during the 2008-2009 academic year. As in his evaluation for the 2007-2008 year, Calichman praised Chen‘s “fine teaching record” and her “productivity as a scholar,” noting that Chen received strong teaching reviews, published new scholarship, and presented at several conferences. J.A. 202. But “[r]egarding the matter of collegiality,” he felt that Chen “still ha[d] considerable room for improvement.” Id. He explained:
My remarks in last year‘s evaluation touched upon her overaggressiveness and lack of tact, as perceived by several of her colleagues. Comments of this nature have continued, despite my attempts to provide guidance throughout the school year.... Specifically, several faculty members in Asian Studies have come to my office to complain of her conduct, specifically mentioning that they found Prof. Chen unreasonably defensive and difficult to work with. In addition, a disturbing incident took place earlier this month in which Prof. Chen acted inappropriately toward a student with whom she had problems....
2. CCNY‘s Employment Decisions
The end of the 2008-2009 school year marked the beginning of an uncertain time for Chen. Because her position as Interim Director of the Asian Studies program was a one-year appointment, she would learn over the summer whether she would be offered a second term on the job. Similarly, although Chen had already been reappointed as an assistant professor for the 2009-2010 school year, the Executive Committee of the Department of Foreign Languages and Literatures was scheduled to reconvene in fall 2009 to determine whether to offer employment to its assistant professors for the 2010-2011 academic year.
On July 7, 2009—a little more than a month after Calichman‘s evaluation—CCNY‘s then-President, Gregory H. Williams, wrote Chen to thank her for her “service ... as Interim Director of Asian Studies” and to inform her that, “[f]or the coming academic year, a time when long-range strategic planning and hiring will be necessary, I have asked Professor Calichman to take direct charge of the program.” J.A. 209. According to Reynolds, both he and Calichman advised against reappointing Chen to another term as Interim Director, but CCNY‘s President had ultimate authority over the decision.
Following this decision, but before the Executive Committee convened to consider assistant professorships, Chen filed a complaint with CCNY‘s Office of Affirmative Action (the “Affirmative Action Complaint“) and composed several memoranda rebutting Calichman‘s evaluation and his assessment of the May 20 meeting. In the Affirmative Action Complaint—which she filed on August 25, 2009—Chen claimed that Lesen committed “racial/linguistic discrimination” by “ask[ing] [Chen] to read the word, ‘stop,’ after her for 6-8 times in a racially and linguistically discriminatory tone.” J.A. 213. Chen also averred that Calichman and Murphy denied her “equal treatment in employment” because she was a “non-white, junior and foreign woman,” and retaliated against her because she complained about the Student. J.A. 211. According to the Complaint, Calichman and Murphy should have referred her to the Affirmative Action office, not Lesen, because the Student had sexually harassed her and Lesen is not qualified to handle such harassment. Chen also stated that Calichman and Murphy negatively affected her career by criticizing how she handled the situation.
Chen‘s memoranda rebutting Calichman‘s evaluation and his assessment of the May 20 meeting reiterated these allegations, highlighted instances of Chen‘s collegiality, and defended her conduct vis-à-vis the Student. In Chen‘s view, Lesen told her to confront the Student right away and later contradicted herself by criticizing Chen‘s actions. The Student, Chen claims, “should have thanked” her for presenting him with written rules of behavior. J.A. 436.
Once informed of the Executive Committee‘s decision that she would not be reappointed for the 2010-2011 school year, Chen filed an appeal with the Humanities Division‘s Personnel and Budgetary Committee. Chen submitted documents on her behalf—including letters of support from faculty members—and Calichman testified against Chen‘s candidacy. The chair of the Committee recalled receiving this information, as well as having direct discussions with Chen. J.A. 572. The Personnel and Budgetary Committee denied Chen‘s appeal on November 3, 2009, by a vote of six against and one abstention. Chen then pressed her appeal before a CCNY Review Committee, which voted unanimously against her reappointment. When asked if he could remember anything about the decision, the chair of the Review Committee noted that it “had to do with her ... inappropriate conduct, erratic behavior.” J.A. 580.
Finally, Chen sought relief from CCNY‘s President, Robert Paaswell. Paaswell reviewed the documents Chen submitted, spoke with Calichman, Lesen, and Murphy, and decided to deny Chen‘s appeal. In a letter to Chen, Paaswell “recognize[d] that [Chen‘s] teaching ha[d] been positively evaluated by [her] peers and [her] students,” that her work as a scholar had been “commendable,” and that she had “provided valuable service to the College.” J.A. 169. He concluded, however, that Chen‘s “conduct in connection with an incident that occurred during the Spring 2009 semester with a student displayed seriously poor judgment,” and that her subsequent memos about the situation “demonstrate[d] that [she] failed to recognize the inappropriateness of [her] conduct.” J.A. 169. In Paaswell‘s judgment, this conduct demonstrated Chen‘s failure “to satisfy the mandate of [Bylaw] Section 11.7.B.2,” which requires assistant professors to demonstrate “satisfactory qualities of personality and character.” J.A. 170.
B. Procedural History
Chen filed a complaint with the New York State Division of Human Rights, claiming that CCNY took adverse employment action against her because of her national origin, race, and sex, and because of her complaints about the Student and several employees. When the agency dismissed her claims, she promptly brought suit against CUNY and four of its employees—Calichman, Lesen, Murphy, and Paaswell (the “Individual Defendants“)—in
Following discovery, the defendants filed a joint motion for summary judgment, which the district court granted on March 31, 2014. On the federal discrimination claims against CUNY and the Individual Defendants, the court assumed, without deciding, that Chen established a prima facie case of discrimination on the basis of gender, race, and national origin. Even with that assumption, the court concluded that Chen had failed to raise a genuine dispute of material fact about whether CUNY‘s employment decisions or the Individual Defendants’ actions were motivated by discrimination. In particular, the court noted that the record contained “overwhelming evidence” that Chen lost her Interim Director position and her assistant professorship because of the way she handled the situation with the Student and because of her interactions with her colleagues. S.P.A. 13–14.
As for the federal retaliation claim against CUNY, the court again assumed that Chen could establish a prima facie case of retaliation, but concluded that CUNY “articulated legitimate, non-retaliatory reasons for not renewing Chen‘s appointments” and that Chen could not show that those reasons were a pretext for retaliatory animus. S.P.A. 18. The court observed that the employment decisions were “entirely consistent as a progressive response to Chen‘s disturbing incident with the Student” and that her “reappointment had been called into question long before she filed the affirmative action complaint.” S.P.A. 19. In light of these facts, the mere temporal proximity of her complaint to the employment decisions was not sufficient to raise a genuine dispute of material fact about CUNY‘s alleged retaliatory motive. The court therefore granted summary judgment for defendants on all of Chen‘s claims.6 This appeal followed.
DISCUSSION
We review the “district court‘s decision to grant summary judgment de novo, resolving all ambiguities and drawing all permissible factual inferences in favor of the party against whom summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010). (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)). Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Chen‘s primary argument on appeal is that the district court erred by granting summary judgment on her claim that CUNY retaliated against her for filing an Affirmative Action Complaint, in violation of
1. Retaliation
The district court assumed, without deciding, that Chen established a prima facie claim of retaliation. CUNY, however, offered a legitimate rationale for its decisions against reappointing her as either Interim Director of the Asian Studies program or as an assistant professor: she demonstrated “overaggressiveness and [a] lack of tact,” both with her colleagues and in the incident with the Student. J.A. 202. Chen argues that this explanation is a pretext for retaliation. In brief, she contends that the timing of the employment decision, her reliance on Lesen‘s instructions, and the positive portions of her reviews show that CUNY was led by Calichman to turn an isolated issue with a student into a severe adverse employment decision as punishment for filing an Affirmative Action Complaint.7 We disagree and conclude that the district court correctly decided that Chen failed to raise a genuine dispute of material fact about whether CUNY retaliated against her because of her Complaint.
Significantly, it is undisputed that members of the Department of Foreign Languages and Literatures took issue with
Not only did Lesen, Calichman, and Murphy develop these opinions about Chen‘s conduct before she filed her Affirmative Action Complaint, they also maintained a consistent perspective afterwards. See Weinstock v. Columbia Univ., 224 F.3d 33, 45 (2d Cir. 2000) (noting that the “consistency of the viewpoint expressed” supports the “proffered nondiscriminatory reason” for the employment action). For instance, in interviews with the Affirmative Action office, Calichman stated that Chen was “extremely resistant” to the idea that she handled the situation with the Student incorrectly, and Murphy described the May 20 meeting as “like pulling teeth.” J.A. 414-15. Similarly, although the record does not describe what Calichman said when he advocated against Chen‘s reappointment, the chair of the Review Committee recalled that the central issue on Chen‘s appeal was her “inappropriate conduct.” J.A. 580. Paaswell also wrote that, after speaking with Lesen, Calichman, and Murphy, he decided against reinstating Chen as an assistant professor because her conduct with the Student “displayed seriously poor judgment,” and her subsequent handling of the situation “demonstrate[d] that [she] failed to recognize the inappropriateness of [her] conduct.” J.A. 169.
In light of this background, Chen‘s argument that she handled the Student “precisely as Lesen directed,” Appellant‘s Br. at 33–34, is beside the point—at least in regards to adducing evidence on which a reasonable jury could find that Chen was the victim of retaliation. Even if Calichman, Murphy, and Lesen reacted ill-advisedly to Chen‘s conduct somehow—faulting her for doing what Lesen had counseled—they arrived at their opinions
Perhaps recognizing these issues, Chen counters that allegations of her “overaggressiveness and lack of tact,” even if true, would not have caused CUNY to deny her reappointment were it not for her Affirmative Action Complaint. In support, she cites the timing of her Complaint in relation to the employment decision and the positive elements of her evaluations. But this evidence, in context, does not support the inference that Chen suggests. We have long held that “temporal proximity” between a protected complaint and an adverse employment action “is insufficient to satisfy [plaintiff‘s] burden to bring forward some evidence of pretext,” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam), and the inference is particularly weak in this case. The executive committee of every department at CCNY conducts annual reviews of assistant professors, and the Executive Committee of the Department of Foreign Languages and Literatures evaluated Chen‘s candidacy at the same time as it reviewed the other assistant professors in the Department. As a result, the timing of its decision about Chen‘s reappointment cannot, under these circumstances, plausibly support an inference that Chen would have been reappointed had she not filed her Affirmative Action Complaint. CCNY‘s annual review process, by its nature, must take into account the types of collegiality and student interaction concerns that Calichman‘s evaluation raised; these concerns would thus have come up at Chen‘s review regardless of her protected activities.
Nor do the positive aspects of Chen‘s evaluations, without more, support the inference that CUNY‘s reappointment decision was a disproportionate response to the information it received about her conduct, much less that this decision was retaliatory. Chen‘s positives are impressive: both Calichman and Paaswell stated
In sum, the district court was correct that, assuming Chen established a prima facie case of retaliation, CUNY offered a non-retaliatory explanation for its reappointment decision and Chen failed to present sufficient evidence from which a reasonable jury could conclude “that the desire to retaliate was the but-for cause” of CUNY‘s action. Nassar, 133 S. Ct. at 2528. Accordingly, we affirm the court‘s decision to grant CUNY summary judgment on Chen‘s
2. Discrimination Claims
Chen also argues that the district court was wrong to grant summary judgment on her claims that CUNY violated
As with the retaliation charge, we evaluate Chen‘s
At bottom, Chen‘s discrimination claims revolve around the argument that she followed Lesen‘s instructions about setting boundaries with the Student, so Calichman, Lesen, and Murphy must have had discriminatory motives for reacting as they did. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147–48 (2000) (permitting the factfinder “to consider [the defendant‘s] dishonesty about a material fact” (emphasis added)). Chen‘s testimony, however, reveals nothing more than a difference of opinion about her actions. Calichman‘s memo after the May 20 meeting described what he, Lesen, and Murphy saw as problematic aspects of Chen‘s conduct, pointing out that she should not have “pressure[d] [the Student] into signing a contract-like document,” “intervene[d]” with a student who was not in her class, “recruit[ed] other professors” to help her, or established a barrier to “enroll[ing] in [her] course.” J.A. 195. There is no evidence that Lesen instructed Chen to handle the situation with the Student in this manner. Indeed, when asked to describe Lesen‘s instructions in a deposition, Chen made no mention of Lesen allowing restrictions on enrollment and stated that Lesen described only verbal ways to set boundaries and told her to “confront the student by [her]self.” Chen noted that she simply “assumed” Lesen wanted her to meet with the Student immediately—an assumption she arrived at not on the basis of a specific statement during the conversation, but from Lesen‘s suggestion in a follow-up e-mail that Chen “[d]efinitely keep [her] posted.” J.A. 324–27, 442. We take no position as to whether Chen handled the matter improperly, and indeed, we do not question the sincerity of Chen‘s belief that she faced a difficult situation and handled it appropriately. Nonetheless, we cannot conclude that a reasonable jury could find that Chen‘s colleagues were insincere in their own belief that, even if the Student‘s behavior was odd or improper, Chen‘s handling of the situation demonstrated exceedingly poor judgment. See Reeves, 530 U.S. at 147–48; Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005) (“[P]laintiff must prove that a defendant‘s proffered reasons were not the true reasons for its actions but a pretext for discrimination.“). As a result, Chen‘s evidence about Lesen‘s instructions does not support the inference that Calichman, Lesen, Murphy, or CUNY discriminated against her on the basis of her race, national origin, or gender.
Similarly, none of the other circumstances surrounding the reappointment decisions warrants an inference of discrimination. Chen may be correct that, in certain contexts, vague words like “collegiality” can serve as a mask for discrimination. But in light of Calichman‘s rationale for his review of Chen‘s collegiality and the fact that CCNY‘s Bylaws require assistant professors to demonstrate “satisfactory qualities of personality and character,” J.A. 170, it is “simply not objectively reasonable to label” the word collegiality as a “semaphore[] for discrimination.” Weinstock, 224 F.3d at 44–45. By the same token, Chen‘s testimony as to Lesen‘s re-
Given the absence of evidence giving rise to an inference of discrimination, we agree with the district court‘s decision that no reasonable jury could conclude that CUNY and the Individual Defendants were motivated, in whole or in part, by a desire to discriminate on the basis of Chen‘s race, national origin, or gender. Indeed, as the district court concluded, there is simply “no evidence in the record that Defendants’ failure to renew Chen‘s Directorship or appointment as Professor for the 2010-2011 academic year had anything to do with Chen‘s gender, race, or national origin.” S.P.A. 13. We therefore affirm the district court‘s decision to grant summary judgment to CUNY on both of Chen‘s
B. New York City Human Rights Law
In addition to her federal claims, Chen also argues that Calichman, Lesen, Murphy, and Paaswell violated the NYCHRL because they discriminated against her on the basis of race, national origin, and gender, and because they retaliated against her for filing an Affirmative Action Complaint. Based on the evidence in the record, no reasonable jury could agree with Chen‘s claims.
“[F]or many years, the NYCHRL was construed to be coextensive with its federal and state counterparts.” Velazco v. Columbus Citizens Found., 778 F.3d 409, 410 (2d Cir. 2015) (per curiam). But in 2005, the New York City Council amended the law to emphasize that “interpretations of state and federal civil rights statutes can serve only as a floor below which the [NYCHRL] cannot fall” and that the NYCHRL should “be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Local Civil Rights Restoration Act of 2005, § 7, N.Y.C. Local L. No. 85). In light of these revisions “courts must analyze NYCHRL claims separately and independently from any federal and state law claims, construing [its] provisions ‘broadly in favor of discrimination plaintiffs to the extent that such a construction is reasonably possible.‘” Id. (quoting Albunio v. City of New York, 16 N.Y.3d 472, 477–78 (2011) (internal citations omitted)).
New York courts seeking to heed the City Council‘s command have approached discrimination and retaliation claims under a similar framework. In both situations, the plaintiff must establish a prima facie case, and the defendant then has the opportunity to offer legitimate rea-
Viewed through this lens, we agree with the district court‘s decision that Chen has not presented evidence from which a reasonable jury could conclude that discrimination on the basis of race, national origin, or gender played a role in the Individual Defendants’ actions. As explained above, Calichman, Lesen, and Murphy provided a legitimate reason for expressing negative opinions about Chen‘s conduct. Chen has failed to raise a genuine dispute about whether those “complaints ... were made in good faith.” Melman, 946 N.Y.S.2d at 36. Even under the NYCHRL, “[t]he mere fact that [a] plaintiff may disagree ... [and] think that [her] behavior was justified does not raise an inference of pretext.” Id. (quoting Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312 (2004) (brackets omitted)). Nor do Calichman‘s reference to “collegiality” or Lesen‘s use of the word “stop” sufficiently support Chen‘s claim; no reasonable jury could conclude, in context, that either evinced discriminatory intent.
Turning to Chen‘s retaliation claim, we note that NYCHRL‘s retaliation provision is broader than Title VII‘s—protecting plaintiffs who “oppos[e] any practice forbidden under” the law from conduct “reasonably likely to deter a person engaging in such action.” Mihalik, 715 F.3d at 112; see also
Chen‘s retaliation claim fails even under this broader provision. To begin, there is simply no evidence that Lesen or
In sum, after conducting a separate analysis for Chen‘s NYCHRL claims, we conclude that the district court‘s decision granting summary judgment to the Individual Defendants was correct. We therefore affirm its decision.14
CONCLUSION
We have considered Chen‘s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
DENNY CHIN, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority‘s holding that the district court properly granted summary judgment dismissing plaintiff-appellant Ya-Chen Chen‘s
Chen, an Asian woman, was employed as an Assistant Professor at the City College of New York (“CCNY“) starting in September 2007. She had generally positive reviews, was appointed Interim Director of the Asian Studies Program at the start of her second year, and was reappointed as a tenure-track Assistant Professor for the 2008-2009 and 2009-2010 academic years. Yet, after she complained about receiving too much attention from a fifty-four-year-old male student (the “Student“) and then complained of what she believed to be discrimination, she was dismissed as Interim Director of the Asian Studies Program, denied reappointment to a tenure-track professorship, and then fired. A reasonable jury could find that these adverse actions were retaliatory.
Accordingly, I would vacate the judgment of the district court with respect to Chen‘s retaliation claims under
I
To prove retaliation, a plaintiff must show that 1) her employer discriminated or took an adverse employment action against her 2) “because” she opposed an unlawful employment practice. See
In my view, the district court erred in granting summary judgment dismissing Chen‘s
A
First, the district court erred by drawing factual conclusions at the summary judgment stage rather than simply determining whether genuine issues of material fact existed for trial.
The district court found that Chen failed to handle the incident involving the Student according to Lesen‘s instructions, but the record contained conflicting evidence in this respect. Chen contends that Lesen instructed her to confront the Student and set up boundaries even though he was not then enrolled in her class, and that Lesen suggested that Chen do so immediately, that is, before the end of the semester. In contrast, Lesen denies that she suggested that Chen should interact with the Student before the end of the semester and contends specifically that she told Chen “not to deal with these behaviors before they actually occurred.” Ya-Chen Chen v. City Univ. of N.Y., No. 11 Civ. 0320(RA), 2014 WL 1285595, at *2 (S.D.N.Y. Mar. 31, 2014). Rather than viewing the record in the light most favorable to Chen, see Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012), the district court stated that it “shares Defendants’ view” that Chen‘s handling of the incident was “disturbing” and “inappropriate,” Chen, 2014 WL 1285595, at *8. Indeed, the district court resolved the factual dispute in favor of defendants, finding, for example, that “there is no evidence that Lesen instructed Chen to ... speak to the Student immediately,” id., when there was such evidence: Chen‘s recollection of the meeting and Lesen‘s e-mail following the meeting, which can be reasonably construed as contemplating immediate action, see id. at *2.
As the majority observes, the district court also found that “[d]efendants’ actions, contrary to constituting evidence of retaliation for Chen‘s complaints, are entirely consistent as a progressive response to Chen‘s ‘disturbing incident’ with the Student.” Id. at *11 (emphasis added); see Maj. Op. at 69. By finding these actions “entirely consistent” with the notion of progressive discipline, and by finding that non-retaliatory reasons existed for defendants’ decisions, the district court made a factual finding that should have been reserved for the jury. Of course, while the actions might have been “entirely consistent” with the concept of progressive discipline, they also could have been found by a reasonable jury to be retaliatory.
B
Second, genuine issues of fact remain that should be resolved by a jury.
First, many of the facts relating to the incident involving the Student are disputed. As discussed above, whether Chen handled the meeting with the Student in accordance with Lesen‘s instructions is a factual question for the jury. Similarly, factual questions remain as to whether there was a sexual undertone to the incident and whether Chen described it as a sexual incident. Chen complained that the Student harassed her by blocking the doorway, spending long periods of time in her office hours, and would move closer and closer to her when speaking to her. Chen used words like “worried, afraid, strange,” when complaining about the incident and noted that a male colleague did not experience the same interactions with the Student. App. at 329.
Third, a factual question exists as to whether the reappointment process was tainted. Calichman was present and voted at the October 15, 2009 executive committee meeting to reappoint professors. He had been named in Chen‘s Affirmative Action complaint, and thus there is a question as to whether his involvement unduly influenced the decision.
These and other disputed factual questions are all relevant to a determination of whether retaliation was a cause of Chen‘s adverse treatment, and accordingly should be considered by a jury.
C
Third, there is evidence in the record from which a reasonable jury could find retaliation, including the temporal proximity of events, Chen‘s mostly positive evaluations, concerns about the reappointment process, the disproportionate nature of Chen‘s punishment, and defendants’ shifting explanations for her dismissal.
First, the timeline of events supports the notion that defendants acted with a retaliatory motive. The incident occurred on May 13, 2009. Chen met with Calichman and Murphy seven days later to discuss the incident. A mere eighteen days later, Calichman recommended that Chen be removed as Director of the Asian Studies Program, and she was replaced as Director. On August 25, 2009, Chen filed a complaint with CCNY‘s Affirmative Action Office. Within two months of filing, on October 20, 2009, defendants voted not to reappoint Chen. On November 4, 2009, Chen filed a complaint with the New York State Division of Human Rights. Within a couple weeks, on November 19, 2009, Chen was notified that her position would be permanently terminated.
The majority contends that because Lesen, Calichman, and Murphy developed their “opinions about Chen‘s conduct” before she filed her complaint with the Affirmative Action Office, “[n]o reasonable jury could conclude that their views of the situation were motivated by retaliatory animus.” Maj. Op. at 72. This reading of the facts, however, gives undue weight to defendants’ initial reactions to the incident, ignoring the escalation of both Chen‘s complaints and defendants’ actions against her. While defendants removed Chen as Director of the Asian Studies Program before she filed with the Affirmative Action Office, this occurred after she had already complained to Calichman and Murphy about the incident. Further, the decision to not reappoint her came after the Affirmative Action Office filing. Accordingly, the timeline of events supports an inference that Chen was dismissed for complaining about the incident and then complaining of discrimination against her.
Second, Chen‘s demonstrated history of positive performance evaluations supports an inference of retaliation. Chen‘s June 2, 2008 evaluation recognized her strengths and noted that her overall relations with
Third, Chen presented evidence that Calichman tainted the reappointment process, further supporting her retaliation claim. Calichman was aware that he was a subject of Chen‘s Affirmative Action complaint and actively advocated against Chen and ultimately voted against her reappointment. Moreover, the other seven professors up for reappointment that year were reappointed unanimously. Yet Chen did not receive a single favorable vote: two members of the committee abstained and three voted against reappointment. A reasonable jury could infer an intent to punish.
Fourth, the disproportionate nature of Chen‘s punishment supports a finding of retaliation. See Nembhard v. Mem‘l Sloan-Kettering Cancer Ctr., 918 F. Supp. 784 (S.D.N.Y. 1996), aff‘d, 104 F.3d 353 (2d Cir. 1996) (holding that harsh punishment coupled with positive employment record supports finding of pretext). Chen served as a tenure-track assistant professor from 2007 until 2010 and was reappointed twice during that time. As recognized by Paaswell, Chen was generally well-regarded, her “productivity as a scholar ha[d] been ‘commendable,‘” and she provided valuable service to the college, including serving on the Department Curriculum Committee, managing the Department website, offering two independent studies courses, and grading Chinese language placement exams. App. at 169. Paaswell also acknowledged that Chen had been “positively evaluated” by her peers and students. Id. Murphy echoed Paaswell‘s recognition of Chen‘s positive impact and even testified that she was surprised when Chen was removed as the Director of the Asian Studies Program. In light of this record, a reasonable jury could surely infer a retaliatory motive from the failure of defendants to impose a punishment less severe than termination.
Fifth, defendants’ shifting explanations for Chen‘s termination support a finding of retaliation. See Zann Kwan, 737 F.3d at 849 (vacating grant of summary judgment dismissing retaliation claims where defendants provided shifting explanation for employee‘s termination). Defendants now contend that they had legitimate reasons for dismissing Chen: “her longstanding inability to work in a collegial manner with other faculty members, and her inappropriate conduct with respect to [the Student].” Appellees’ Br. at 17. The district court likewise relied on “ample evidence that Chen‘s reappointment had been called into question long before she filed” her
*
In any employment case, a plaintiff must take “the bits and pieces of available evidence” to create a “mosaic” of facts supporting her claim of discrimination or retaliation. See Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998), abrogated in part on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). A reasonable jury could agree with the district court‘s assessment of the facts and find Chen‘s mosaic insufficient to paint a retaliation claim. Taking all the pieces of evidence Chen has presented together, however, and viewing them in the light most favorable to her, a reasonable jury could also conclude that, with her generally positive record, she would not have been fired but-for her complaints about the incident. Accordingly, I would remand Chen‘s
II
I would also remand the case for the district court to properly address Chen‘s NYCHRL claims. While the district court stated that the standard under New York City law is different from the standard under
Claims under the NYCHRL must be analyzed “more liberally” than
The district court here dismissed Chen‘s NYCHRL claims without referencing any of the relevant facts. For Chen‘s discrimination claims, the district court held: “For the reasons described above [referencing the Title VII discussion], Chen has failed to put forth sufficient evidence to create a genuine issue of fact that discrimination played any role in Defendants’ actions.” Chen, 2014 WL 1285595, at *10. Similarly, for her retaliation claims, the district court held: “Chen‘s alleged evidence of retalia-
In my view, a reasonable jury could find, under the NYCHRL‘s more lenient standard, that Chen suffered both discrimination and retaliation. Defendants’ disagreement with Chen about the nature of the incident and Lesen‘s subsequent instructions, the temporal correlation between Chen‘s complaints and termination, Chen‘s pattern of positive evaluations until the incident, the tainted reappointment process, the disproportionate nature of Chen‘s punishment, and defendants’ shifting explanations surrounding her termination all support her NYCHRL claims, and I would remand for the district court to analyze these claims under the proper standard.
*
For the reasons set forth above, I dissent from the majority‘s disposition with respect to Chen‘s
Marc LESTERHUIS, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
Docket No. 14-3779.
United States Court of Appeals, Second Circuit.
Submitted: Oct. 30, 2015.
Decided: Nov. 6, 2015.