Filed: Oct. 28, 2015
Latest Update: Mar. 02, 2020
Summary: 14-1469-cv Ya-Chen Chen v. City University of New York, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2014 (Argued: March 25, 2015 Decided: October 28, 2015) No. 14-1469-cv –––––––––––––––––––––––––––––––––––– 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 Offi
Summary: 14-1469-cv Ya-Chen Chen v. City University of New York, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2014 (Argued: March 25, 2015 Decided: October 28, 2015) No. 14-1469-cv –––––––––––––––––––––––––––––––––––– 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 Offic..
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14‐1469‐cv
Ya‐Chen Chen v. City University of New York, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2014
(Argued: March 25, 2015 Decided: October 28, 2015)
No. 14‐1469‐cv
––––––––––––––––––––––––––––––––––––
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.
––––––––––––––––––––––––––––––––––––
Before: Winter, Livingston, and Chin, Circuit Judges.
Plaintiff‐Appellant Ya‐Chen Chen brought suit against the City University
of New York (“CUNY”) and four of its employees (the “Individual Defendants”)
in the United States District Court for the Southern District of New York
(Abrams, J.). She argued, inter alia, that CUNY violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000‐e et seq., and that the Individual Defendants
violated the Equal Protection Clause of the Fourteenth Amendment and the New
1
York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8‐107,
because they discriminated against her on the basis of her gender, race, and
national origin, and retaliated against her for a complaint that she filed against
several of the Individual Defendants. Following discovery, the district court
granted summary judgment to CUNY and the Individual Defendants on all of
Chen’s claims. We conclude that the district court correctly decided that, based
on the evidence presented, no reasonable jury could find that either CUNY’s or
the Individual Defendants’ actions were motivated, even in part, by a desire to
discriminate or retaliate against Chen. Accordingly, the judgment of the district
court is AFFIRMED.
Judge CHIN concurs in part and dissents in part in a separate opinion.
FOR PLAINTIFF‐APPELLANT: MATTHEW S. PORGES, Law Office of
Matthew S. Porges, Esq., Brooklyn, NY.
FOR DEFENDANTS‐APPELLANTS: 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, NY.
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
2
the administration — including Defendants‐Appellants Beth Lesen, Richard F.
Calichman, and Geraldine Murphy — informed Chen that, in their view, she had
handled the incident inappropriately. Chen disagreed with this assessment and
expressed her opinion to those administrators. In July 2009, CCNY informed
Chen that she would not be reassigned to a second year as Interim Director of the
Asian Studies program. Several months later, CCNY’s Department of Foreign
Languages and Literatures undertook its annual review of assistant professors,
who must be reappointed each year until they receive tenure. The Department
decided against reappointing Chen for the 2010‐2011 academic year. Chen
unsuccessfully appealed this decision through two stages of administrative
review, and finally to CCNY’s President, Defendant‐Appellant Robert Paaswell.
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 Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000‐e et seq., and that the individual
defendants violated the Equal Protection Clause and the New York City Human
Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8‐107, because they
discriminated against Chen on the basis of her race, gender, and national origin,
3
and retaliated against her for an internal complaint that she filed against
Calichman, Lesen, and Murphy in August 2009. Following discovery, the district
court granted summary judgment to the defendants on all of Chen’s claims. We
agree with the district court’s decision, and therefore affirm.
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,
4
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, 2008. He noted that Chen was a “committed teacher and scholar” who
had done “everything that was asked of her in terms of department service.” J.A.
185. Calichman, however, had also “received several faculty complaints
regarding what some perceive[d] as her overaggressiveness and lack of tact.” Id.
5
These “complaints were voiced primarily in the fall semester,” Calichman noted,
“suggesting that Prof. Chen has since improved her relations with other faculty
in the department.” Id. Nonetheless, Calichman stated that he would “continue
to monitor th[e] situation.” Id. Chen was reappointed for the 2008‐2009
academic year.
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
6
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]
7
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 met
with Chen on May 6, 2009 and, after Chen informed her that the Student was
neither physically nor sexually threatening, directed Chen to speak with CCNY’s
Director for Students with Disabilities, Beth Lesen, who “regularly teaches
courses on dealing with difficult students.” J.A. 219.
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
8
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.
1 Chen never testified that Lesen instructed her to immediately meet with the Student
during Chen and Lesen’s meeting. Instead, Chen’s deposition clearly states that Chen
assumed such a directive (for an immediate meeting) from the follow‐up email. Contrary
to the assertion in Chen’s brief on appeal, moreover, that the “e‐mail suggested that
Chen ‘set up boundaries’ before the end of the semester,’” Appellant’s Br. at 10 (emphasis
added), the email includes no such suggestion.
9
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 harassed” her and
that everything was in Chen’s “imagination.” J.A. 335.
10
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
11
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
2 The record is undisputed that in the context of the May 13 incident, Chen contacted
other professors requesting information about the Student.
12
“[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
overaggresiveness 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 . . . .
Id.3 The evaluation then described Chen’s encounter with the Student, Lesen’s
report of Chen’s “unwillingness to claim responsibility for her inappropriate
conduct,” and the May 20 meeting between Chen, Calichman, and Murphy. Id.
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
3 As an example of other complaints that Calichman received about Chen, Defendants‐
Appellees submitted an email from Reynolds to Calichman in which Reynolds wrote
that “Chen needs to torque‐down a bit[,]” in connection with her role as Interim
Director of the Asian Studies program, and that “[s]he hasn’t been appointed to the
federal bench.” J.A. 207. Reynolds expressed concern that Chen was “going to wear
out Geraldine [Murphy], who’s pretty patient.” J.A. 207.
13
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
14
“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.
On October 15, 2009, the Executive Committee of the Department of
Foreign Languages and Literatures convened to determine whether to reappoint
assistant professors in the Department for the 2010‐2011 school year. The group
15
consisted of five voting members. Calichman was among the voting members,
and he advocated against Chen’s reappointment. Ultimately, the Executive
Committee sided with Calichman, with three votes against reappointment and
two abstentions. The Committee informed Chen of its decision in a letter on
October 20, 2009.4 Several days later, the Affirmative Action Office informed
Chen that it had investigated her Complaint and determined that the Student
had not sexually harassed her or “threaten[ed] her with any type of violence”
and that her evaluation was consistent with the prior year and “gave a fair and
accurate representation of her performance, including her triumphs and
shortcomings.” J.A. 220‐21. The Affirmative Action Office found no
wrongdoing.
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
4 The Executive Committee reappointed the seven other assistant professors that it
discussed at the October 15 meeting. Two of those assistant professors — Carlos Riobo
and Vanessa Valdes — started at the same time as Chen.
16
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
17
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 the United
States District Court for the Southern District of New York (Abrams, J.) claiming,
inter alia, that CUNY violated Title VII and that the Individual Defendants
infringed on rights protected by the Equal Protection Clause of the Fourteenth
Amendment and by the NYCHRL.5 In particular, Chen alleged that the decisions
not to reappoint her as Interim Director of the Asian Studies program or as an
assistant professor — along with the negative comments made by the Individual
Defendants — were motivated by discrimination on the basis of her race,
5 Chen filed an initial complaint before Judge McMahon, who dismissed several claims
and gave Chen leave to file an amended complaint. Judge Abrams took charge of the
case after this initial decision.
18
national origin, and gender, and by the desire to retaliate against her for filing an
Affirmative Action Complaint.
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
19
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
6 The district court addressed Chen’s discrimination and retaliation claims under the
NYCHRL separately from her federal claims, but granted the Individual Defendants
summary judgment on them for the same reasons. It also granted summary judgment
on Chen’s claims that the Individual Defendants aided and abetted CUNY’s Title VII
violation.
20
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. Federal Claims
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 Title VII. She also
contends that the court was wrong to grant summary judgment on her
discrimination claims against CUNY under Title VII and against the Individual
Defendants under the Equal Protection Clause. We address each issue in turn.
1. Retaliation
Title VII prohibits employers from retaliating “against any . . . employee[]
. . . because [that individual] has opposed any practice” made unlawful by Title
VII. 42 U.S.C. § 2000e‐3(a). We analyze retaliation claims using the burden‐
shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this framework, the plaintiff bears the initial burden to establish a prima
facie case of retaliation by offering evidence that she “participated in a protected
activity,” “suffered an adverse employment action,” and “that there was a causal
connection between her engaging in the protected activity and the adverse
21
employment action.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010). This showing creates a “presumption of retaliation,” which the defendant
may rebut by “articulat[ing] a legitimate, non‐retaliatory reason for the adverse
employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005). If the defendant provides such an explanation, “the presumption of
retaliation dissipates,” id., and the plaintiff must prove “that the desire to
retaliate was the but‐for cause of the challenged employment action.” Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
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
22
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 Chen’s collegiality long before she
filed her Affirmative Action Complaint. Calichman wrote that in fall 2007 —
Chen’s very first semester at CCNY — he “received several faculty complaints
regarding what some perceive as her overaggressiveness and lack of tact,” and
that he felt it necessary to “continue to monitor th[e] situation.” J.A. 185. The
2008‐2009 school year then brought the incident with the Student. Initially,
Calichman was sympathetic to Chen’s situation, transferring the Student out of
her class, while Lesen and Murphy provided assistance in developing strategies
for dealing with the Student if he joined Chen’s upper‐level course. Once they
learned about the way that Chen confronted the Student, however, their attitude
7 Although several different committees considered Chen’s reappointment, Calichman’s
evaluation played a significant role at every step of the process. As a result, Chen can
succeed in her claim against CUNY if she shows that Calichman was motivated by
unlawful considerations. See Holcomb v. Iona Coll. 521 F.3d 130, 143 (2d Cir. 2008) (“[A]
Title VII plaintiff is entitled to succeed, ‘even absent evidence of illegitimate bias on the
part of the ultimate decision maker, so long as the individual shown to have the
impermissible bias played a meaningful role in the . . . process.’” (quoting Bickerstaff v.
Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999) (alteration in original)).
23
changed. A frustrated Lesen wrote to Calichman and Murphy that she had been
“very clear that the student must not be hindered from registering for the course
. . . and [that] [Chen] must verbally communicate any problems she has to the
student when they’re actually happening.” J.A. 188. Chen, according to Lesen,
not only ignored these instructions, but also “spent hours (literally) refusing to
accept any responsibility for her own actions.” J.A. 189. Murphy and Calichman
agreed with Lesen’s view of the events and expressed their concern with Chen’s
actions in the May 20 meeting. Calichman then reiterated these concerns in his
evaluation, describing the incident with the Student as “disturbing” and noting
that comments from faculty about Chen’s “overaggressiveness and lack of tact”
had continued. J.A. 202. These negative evaluations contributed to CUNY’s
decision not to offer Chen a second term as Interim Director of the Asian Studies
program — a decision that was made before Chen filed her Affirmative Action
Complaint.8
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.,
8 Because CUNY made its decision regarding Chen’s position as Interim Director of the
Asian Studies program before her Complaint, no reasonable jury could conclude that its
decision was motivated by a desire to retaliate against her for that grievance.
24
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
25
reacted ill‐advisedly to Chen’s conduct somehow — faulting her for doing what
Lesen had counseled — they arrived at their opinions that Chen had behaved
improperly long before Chen filed her Affirmative Action Complaint. Thus, no
reasonable jury could conclude that their views of the situation were motivated
by retaliatory animus arising from Chen’s Affirmative Action Complaint. 9
Moreover, Calichman’s evaluation of Chen’s collegiality went beyond her
interactions with the Student, noting complaints from other faculty members
9 Granted, the decision not to reappoint Chen as Director of Asian Studies (and any
deliberations or correspondence thereabouts) occurred after Chen initially complained
about the Student, albeit before the filing of the Affirmative Action complaint.
Nevertheless, no reasonable jury could infer pretext from this temporal proximity. Cf.
El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam) (“[T]emporal
proximity . . . is insufficient to satisfy [plaintiff’s] burden to bring forward some
evidence of pretext.”). Chen produces no testimony or evidence suggesting that any of
the Defendants arrived at their opinions to recommend against reappointment until
after Chen’s confrontation with the Student. Indeed, the record makes clear that, prior
to this confrontation, insofar as any of the Defendants reacted to Chen’s complaints, it
was with support: Chen herself acknowledges that when she first requested that the
Student be moved from her class, on February 4, Calichman “gave [her] verbal support”
and “immediately approved [the transfer].” J.A. 481. It was not until after the May 13
incident and the May 20 meeting with Calichman and Murphy in which both expressed
clear disapproval of Chen’s handling of that incident that Calichman recommended
Chen not be reappointed and Reynolds passed on that recommendation to the provost.
Thus, no reasonable jury could find that retaliatory animus as a result of Chen’s
complaints about the Student, rather than disapproval of Chen’s handling of the
situation, motivated the Defendants to recommend against reappointment.
26
about how Chen handled disagreements in Chen’s very first year of
employment.
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
27
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 that she was a “fine teach[er],” a “productive[e] . . . scholar,” and
provided “valuable” service to CCNY. J.A. 202; see also J.A. 169. But as CCNY’s
Bylaws make clear, reappointment decisions also involve considering whether
the candidate demonstrates “satisfactory qualities of personality and character . .
. and [a] willingness to cooperate with others for the good of the institution.”10
J.A. 166. Chen has presented no evidence of how CCNY treated assistant
professors who were subject to comparable allegations of inappropriate conduct
10 Chen’s unsupported argument that CUNY does not typically consider “qualities of
personality and character” when making reappointment decisions is belied by the
record. CCNY’s Bylaws explicitly direct evaluators to consider such factors, and
members of both the Personnel and Budget Committee and the Review Committee
testified that their considerations are not limited to teaching, scholarship, and service.
28
with a student or of a lack of collegiality.11 Without such comparators — or some
other evidence suggesting that the college acted on retaliatory motives — no
reasonable jury could decide that CUNY’s decision to prioritize the complaints
against Chen over her professional achievements evinces such motives. See, e.g.,
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001); Graham v.
Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). After all, “universities are free to
establish departmental priorities . . . and to act upon the good faith judgments of
their departmental faculties or reviewing authorities,” Zahorik v. Cornell Univ.,
729 F.2d 85, 94 (2d Cir. 1984), and Title VII is not an invitation for courts to “sit as
a super‐personnel department that reexamines” employers’ judgments, Delaney
v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014) (per curiam) (quoting Scaria
v. Rubin, 117 F.3d 652, 655 (2d Cir. 1997)).
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‐
11 Chen argues that two assistant professors who began teaching in 2007 — Carlos Riobo
and Vanessa Valdes — were reappointed notwithstanding less significant scholarly
achievements and service to the university. She has not, however, presented any
admissible evidence showing that either professor was subject to, or should have been
subject to, similar complaints about collegiality or interactions with students.
29
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 Title VII
retaliation claim.
2. Discrimination Claims
Chen also argues that the district court was wrong to grant summary
judgment on her claims that CUNY violated Title VII by discriminating against
her on the basis of her race, national origin, and gender, and that the Individual
Defendants violated the Equal Protection Clause for the same reason. In brief,
she avers that Calichman, Lesen, and Murphy expressed negative opinions about
how Chen handled the situation with the Student as a pretext for discrimination.
Because Calichman relayed these views, along with other comments about
Chen’s “overaggressiveness and lack of tact,” J.A. 202, to the committees and
individuals responsible for the decision not to reappoint Chen as Interim
Director of the Asian Studies program and as an assistant professor, including
Paaswell, their discrimination tainted CUNY’s ultimate decisions.
As with the retaliation charge, we evaluate Chen’s Title VII and Equal
Protection claims under the McDonnell Douglas framework. Assuming that Chen
established a prima facie case of discrimination, we conclude that, in light of
30
Calichman, Lesen, and Murphy’s stated basis for their opinions, Chen has failed
to “show circumstances that would be sufficient to permit a rational finder of fact
to infer that” either their views or CUNY’s employment decisions were “more
likely than not based in whole or in part on discrimination.” Feingold v. New
York, 366 F.3d 138, 152 (2d Cir. 2004) (quoting Stern v. Trustees of Columbia Univ.,
131 F.3d 305, 312 (2d Cir. 1997)).
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
31
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
32
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 repeated use of the word “stop” in her
second meeting with Chen — a meeting which focused on explaining how Chen
should have confronted the student — is not enough, standing alone, to support
an inference of discriminatory motivations. Quite simply, even if sincerely held,
a plaintiff’s “feelings and perceptions of being discriminated against” do not
provide a basis on which a reasonable jury can ground a verdict. Bickerstaff v.
Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999) (brackets omitted).12
12 Chen also claims that Calichman informed her he would not consider her Chinese‐
language publications when setting her salary, and that he did not allow her to take
33
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 Title
VII claims, and to the Individual Defendants on Chen’s Equal Protection claim.
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.
advantage of a course release. She has failed, however, to identify any publications that
Calichman did not consider, to connect these allegations to the relevant employment
decisions, or to provide any admissible evidence of how other similarly situated
professors were treated. These assertions are therefore insufficient to create a genuine
issue of material fact for trial.
34
“[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 reasons for its actions. See Bennett v.
35
Health Mgmt. Sys., 936 N.Y.S.2d 112, 124 (1st Dep’t 2011). If the defendant
satisfies that burden, summary judgment is appropriate if no reasonable jury
could conclude either that the defendant’s “reasons were pretextual,” Melman v.
Montefiore Med. Ctr., 946 N.Y.S.2d 27, 35 (1st Dep’t 2012), or that the defendant’s
stated reasons were not its sole basis for taking action, and that its conduct was
based at least “in part on discrimination,” id. at 41 (quoting Aulicino v. New York
City Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009)). In other words,
summary judgment is appropriate if “the record establishes as a matter of law”
that discrimination or retaliation “play[ed] no role” in the defendant’s actions.
Mihalik, 715 F.3d at 110 n.8 (quoting Garcia v. Hartford Police Dep’t, 706 F.3d 120,
127 (2d Cir. 2013)); see also Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 38, 40
n.27 (1st Dep’t 2009).13
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
13 We note that, at least in the discrimination context, this inquiry closely mirrors the
questions that courts must answer when resolving summary judgment motions on Title
VII claims. After all, once a Title VII claimant raises a prima facie case of discrimination
and the employer offers a legitimate explanation, the court considers whether a
reasonable jury could conclude that the employer’s decision was motivated, in whole or
in part, by discrimination. The plaintiff can survive summary judgment by showing
that “the employer’s stated reason for the adverse employment action is entirely
pretextual,” or that the employer had “mixed motives,” one of which was the desire to
discriminate. See Holcomb, 521 F.3d at 141‐42.
36
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 N.Y.C. Admin.
Code § 8‐107(7). Chen’s NYCHRL claim, however, still relies principally on the
idea that she was retaliated against because of her Affirmative Action Complaint;
she has not identified any earlier time when she “opposed any practice forbidden
37
under” the NYCHRL. Thus, she must show that Calichman, Lesen, Murphy, and
Paaswell engaged in some prohibited conduct and that their decision to do so
was “caused at least in part by . . . retaliatory motives.” Id. at 113; see also
Brightman v. Prison Health Serv., 970 N.Y.S.2d 789, 789 (2d Dep’t 2013).
Chen’s retaliation claim fails even under this broader provision. To begin,
there is simply no evidence that Lesen or Murphy engaged in any conduct
“reasonably likely to deter a person” from complaining about NYCHRL
violations after Chen filed her Affirmative Action Complaint. See Melman, 946
N.Y.S.2d at 42 (noting that a defendant cannot “be deemed to have retaliated
against plaintiff simply by denying that it was discriminating against him and
confronting him with [his] professional lapses”). Nor has Chen presented facts
from which a reasonable jury could conclude that Calichman’s advocacy against
Chen’s reappointment or Paaswell’s rejection of her appeal were motivated, in
part, by retaliation. As explained above, Calichman took note of comments
about Chen’s “overaggressiveness and lack of tact” in her first year of teaching
and, in his view, her confrontation with the Student and handling of the
aftermath confirmed those concerns. Calichman expressed those opinions in a
professional evaluation long before Chen’s Affirmative Action complaint and
38
reiterated the concerns when advocating against Chen’s reappointment. Cf.
Mihalik, 715 F.3d at 116 (denying summary judgment when defendant
“presented no evidence that anyone confronted [plaintiff] about [performance]
problems” until plaintiff complained). Under these circumstances, the fact that
Chen’s reappointment decision came soon after her Affirmative Action
complaint is insufficient to support a claim of retaliatory discharge: Chen was
reviewed along with all other assistant professors and, in light of CCNY’s review
system, Calichman had no earlier opportunity to voice his opinion on Chen’s
reappointment. See Suriel v. Dominican Rep. Educ. & Mentoring Proj., Inc., 926
N.Y.S.2d 198, 202 (3d Dep’t 2011). Chen has also presented no evidence that
Paaswell’s decision was based on anything other than considering her record in
light of his discussions with Calichman and other faculty members.
Accordingly, the district court was therefore correct to grant all of the defendants
summary judgment on Chen’s retaliation claim.
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
14 Because we conclude that Chen has failed to present sufficient evidence from which a
jury could conclude that CUNY violated Title VII or that the Individual Defendants
39
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.
violated the Equal Protection Clause or the NYCHRL, we also agree with the district
court’s decision to grant summary judgment on her aiding and abetting claims.
40
DENNY CHIN, Circuit Judge, concurring in part and dissenting in part:
I concur in the majorityʹs holding that the district court properly granted
summary judgment dismissing plaintiff‐appellant Ya‐Chen Chenʹs Title VII
discrimination claims. I respectfully dissent, however, from the majorityʹs
affirmance of the district courtʹs dismissal of Chenʹs retaliation claims under Title
VII and her claims for discrimination and retaliation under the New York City
Human Rights Law (the ʺNYCHRLʺ). In my view, the record contains sufficient
evidence to permit a reasonable jury to find that: 1) with respect to her Title VII
claims, Chen was fired because of her complaints of discrimination; and 2) under
the NYCHRLʹs more lenient standard, Chen was treated less well because of her
race or gender and because of her complaints of discrimination.
Chen, an Asian woman, was employed as an Assistant Professor at the
City College of New York (ʺCCNYʺ) 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 ʺStudentʺ) and then complained of what she believed to be
41
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 Chenʹs retaliation claims under Title VII and her retaliation and discrimination
claims under the NYCHRL and remand for further proceedings.
I
Title VII provides that ʺ[i]t shall be an unlawful employment practice for
an employer to discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under this
subchapter.ʺ 42 U.S.C. § 2000e‐3(a). Such unlawful discrimination occurs where
an employer takes an ʺadverse action[]ʺ against an employee, meaning any
action that ʺcould well dissuade a reasonable worker from making or supporting
a charge of discrimination.ʺ Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
57 (2006). We have observed that such adverse actions often arise when ʺan
employee whose primary claim of discrimination cannot survive pre‐trial
42
dispositive motions is able to take to trial the secondary claim that he or she was
fired or adversely affected in retaliation for asserting the primary claim.ʺ Quinn
v. Green Tree Credit Corp., 159 F.3d 759, 762 (2d Cir. 1998); see Alvarez v. City of
New York, 31 F. Supp. 2d 334, 344 (S.D.N.Y. 1998) (ʺAll too often . . . employers
react negatively to the assertion of a claim and consequently turn a weak
discrimination case into a strong retaliation case.ʺ).
To prove retaliation, a plaintiff must show that 1) her employer
discriminated or took an adverse employment action against her 2) ʺbecauseʺ she
opposed an unlawful employment practice. See 42 U.S.C. § 2000e‐3(a). ʺTitle VII
retaliation claims must be proved according to traditional principles of but‐for
causation . . . .ʺ Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
ʺʹ[B]ut‐forʹ causation does not[, however,] require proof that retaliation was the
only cause of the employerʹs action, but only that the adverse action would not
have occurred in the absence of the retaliatory motive.ʺ Zann Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013). Thus, there may be multiple but‐for
causes, and ʺ[t]he determination of whether retaliation was a ʹbut‐forʹ cause . . . is
particularly poorly suited to disposition by summary judgment, because it
43
requires weighing of the disputed facts, rather than a determination that there is
no genuine dispute as to any material fact.ʺ Id. at 846 n.5.
In my view, the district court erred in granting summary judgment
dismissing Chenʹs Title VII retaliation claims for three reasons: 1) the district
court engaged in improper fact‐finding; 2) there are genuine issues of material
fact to be resolved by a jury; and 3) there is sufficient evidence in the record to
permit a reasonable jury to find retaliation.
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 Lesenʹs 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
44
contends specifically that she told Chen ʺnot to deal with these behaviors before
they actually occurred.ʺ Ya‐Chen Chen v. City Univ. of New York, No. 11 Civ.
0320(RA), 2014 WL 1285595, at *2 (S.D.N.Y. Mar. 31, 2014) (internal quotation
marks omitted). 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 ʺshares Defendantsʹ viewʺ that Chenʹs handling of the incident was
ʺdisturbingʺ and ʺinappropriate,ʺ Chen, 2014 WL 1285595, at *8. Indeed, the
district court resolved the factual dispute in favor of defendants, finding, for
example, that ʺthere is no evidence that Lesen instructed Chen to . . . speak to the
Student immediately,ʺ id., when there was such evidence: Chenʹs recollection of
the meeting and Lesenʹs 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 ʺ[d]efendantsʹ
actions, contrary to constituting evidence of retaliation for Chenʹs complaints, are
entirely consistent as a progressive response to Chenʹs ʹdisturbing incidentʹ with
the Student.ʺ Id. at *11 (emphasis added); see Maj. Op. at 20‐21. By finding these
actions ʺentirely consistentʺ with the notion of progressive discipline, and by
finding that non‐retaliatory reasons existed for defendantsʹ decisions, the district
45
court made a factual finding that should have been reserved for the jury. Of
course, while the actions might have been ʺentirely consistentʺ 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 Lesenʹs 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 ʺworried, afraid, strange,ʺ when
complaining about the incident and noted that a male colleague did not
experience the same interactions with the Student. App. at 329.
Second, factual questions remain regarding defendantsʹ treatment of Chen
after the incident. Chenʹs complaint alleges that Lesen ʺraised the volume of her
46
voice and discriminated against me by requesting me to read the word, ʹstop,ʹ
after her at least six to eight times as if I were only a child.ʺ App. at 211. Chen
alleged ‐‐ and a reasonable jury could find ‐‐ that this conduct was ʺracially and
linguistically discriminatoryʺ and made her feel like ʺa foreign fool or a
kindergarten child.ʺ App. at 213, 333. Chen also complained that her May 20,
2009 meeting with Calichman and Murphy was inappropriate, and testified that
the meeting highlighted ʺvery, very strong cultural differences.ʺ App. at 525.
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 Chenʹs
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 Chenʹs adverse treatment,
and accordingly should be considered by a jury.
47
C
Third, there is evidence in the record from which a reasonable jury could
find retaliation, including the temporal proximity of events, Chenʹs mostly
positive evaluations, concerns about the reappointment process, the
disproportionate nature of Chenʹs punishment, and defendantsʹ 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 CCNYʹs 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 ʺopinions about Chenʹs conductʺ before she filed her complaint
48
with the Affirmative Action Office, ʺ[n]o reasonable jury could conclude that
their views of the situation were motivated by retaliatory animus.ʺ Maj. Op. at
24‐27. This reading of the facts, however, gives undue weight to defendantsʹ
initial reactions to the incident, ignoring the escalation of both Chenʹs complaints
and defendantsʹ 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, Chenʹs demonstrated history of positive performance evaluations
supports an inference of retaliation. Chenʹs June 2, 2008 evaluation recognized
her strengths and noted that her overall relations with others had improved. The
evaluation noted: ʺChen is an excellent teacherʺ; ʺ[s]he also received a colleague
evaluation of ʹGoodʹ and ʹExcellentʹʺ; and ʺChen is a committed teacher and
scholar.ʺ App. at 185. The only negative comment in this review referenced
ʺwhat some perceive as her overaggressiveness and lack of tact.ʺ Id. Even the
49
review Chen received after the incident highlighted her achievements, including
that she received ʺtwo colleague evaluations of ʹVery Goodʹ and ʹExcellent,ʹʺ
secured a book contract, wrote several articles, and delivered several conference
presentations. Id. at 202. It also observed that her ʺproductivity as a scholar is
commendable,ʺ and she provided valuable services to the Asian Studies
Program. Id. Again, in her three years at CCNY, Chen was promoted to Interim
Director of the Asian Studies Program and was twice reappointed to a tenure‐
track professorship. See Stratton v. Depʹt for the Aging for City of N.Y., 132 F.3d
869, 874, 879‐81 (2d Cir. 1997) (citing history of positive performance evaluations
as supporting plaintiffʹs discrimination claims). Chenʹs handling of the incident,
even assuming she mishandled it, must be viewed in the context of her overall
record.
Third, Chen presented evidence that Calichman tainted the reappointment
process, further supporting her retaliation claim. Calichman was aware that he
was a subject of Chenʹs 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
50
the committee abstained and three voted against reappointment. A reasonable
jury could infer an intent to punish.
Fourth, the disproportionate nature of Chenʹs punishment supports a
finding of retaliation. See Nembhard v. Memʹl Sloan‐Kettering Cancer Ctr., 918 F.
Supp. 784 (S.D.N.Y. 1996), affʹd, 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 ʺproductivity as a scholar ha[d] been
ʹcommendable,ʹʺ 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 ʺpositively evaluatedʺ by her peers and students. Id. Murphy echoed
Paaswellʹs recognition of Chenʹs positive impact and even testified that he 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
51
from the failure of defendants to impose a punishment less severe than
termination.
Fifth, defendantsʹ shifting explanations for Chenʹs 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 employeeʹs termination). Defendants now contend that they had
legitimate reasons for dismissing Chen: ʺher longstanding inability to work in a
collegial manner with other faculty members, and her inappropriate conduct
with respect to [the Student].ʺ Appelleesʹ Br. at 17. The district court likewise
relied on ʺample evidence that Chenʹs reappointment had been called into
question long before she filedʺ her complaints. Chen, 2014 WL 1285595, at *11.
Yet, in his letter advising Chen of her dismissal, Paaswell made no reference to
collegiality problems. Instead, Paaswellʹs letter relied only on Chenʹs handling of
the incident. Moreover, the record contains evidence that while some colleagues
had complained about a lack of collegiality on the part of Chen, she was
improving in this respect and, even after the incident, she received ʺtwo
colleague evaluations of ʹVery Goodʹ and ʹExcellent.ʹʺ App. at 202. Hence,
defendants have providing shifting explanations for Chenʹs dismissal.
52
* * *
In any employment case, a plaintiff must take ʺthe bits and pieces of
available evidenceʺ to create a ʺmosaicʺ 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 (1988). A reasonable jury could agree with the district courtʹs assessment of
the facts and find Chenʹs 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 reasonably 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 Chenʹs Title VII
retaliation claims for resolution by a jury.
II
I would also remand the case for the district court to properly address
Chenʹs NYCHRL claims. While the district court stated that the standard under
New York City law is different from the standard under Title VII, it did not
engage in a separate and independent analysis. I thus cannot conclude that the
district court properly applied the NYCHRL. See Velazco v. Columbus Citizens
53
Found., 778 F.3d 409, 411 (2d Cir. 2015) (per curiam) (vacating district courtʹs
grant of summary judgment dismissing plaintiffʹs NYCHRL claims for failing to
explain ʺwith sufficient clarityʺ its reasons for dismissing the NYCHRL claims).
Claims under the NYCHRL must be analyzed ʺmore liberallyʺ than Title
VII discrimination and retaliation claims. See Loeffler v. Staten Island Univ. Hosp.,
582 F.3d 268, 278 (2d Cir. 2009); Bermudez v. City of New York, 783 F. Supp. 2d 560,
592 (S.D.N.Y. 2011). Following the amendments to the NYCHRL in 2005, ʺcourts
must analyze NYCHRL claims separately and independently from any federal
and state law claimsʺ so ʺeven if the challenged conduct is not actionable under
federal and state law, federal courts must consider separately whether it is
actionable under the broader New York City standards.ʺ Mihalik v. Credit
Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). Under the
NYCHRL, a plaintiff need only prove ʺby a preponderance of the evidence that
she has been treated less well than other employees because of her gender [or
other protected characteristic]. At the summary judgment stage, judgment
should normally be denied to a defendant if there exist triable issues of fact as to
whether such conduct occurred.ʺ Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27,
39 (1st Depʹt 2009).
54
The district court here dismissed Chenʹs NYCHRL claims without
referencing any of the relevant facts. For Chenʹs discrimination claims, the
district court held: ʺFor 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 Defendantsʹ actions.ʺ Chen,
2014 WL 1285595, at *10. Similarly, for her retaliation claims, the district court
held: ʺChenʹs alleged evidence of retaliation is insufficient to raise an issue of
fact.ʺ Id. at *12. The court failed to elaborate on these findings.
In my view, a reasonable jury could find, under the NYCHRLʹs more
lenient standard, that Chen suffered both discrimination and retaliation.
Defendantsʹ disagreement with Chen about the nature of the incident and
Lesenʹs subsequent instructions, the temporal correlation between Chenʹs
complaints and termination, Chenʹs pattern of positive evaluations until the
incident, the tainted reappointment process, the disproportionate nature of
Chenʹs punishment, and defendantsʹ 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.
* * *
55
For the reasons set forth above, I dissent from the majorityʹs disposition
with respect to Chenʹs Title VII retaliation claims and NYCHRL claims, and
would instead vacate the judgment of the district court and remand the case for
further adjudication.
56
