11-4370-cv
Xu-Shen Zhou v. SUNY Inst. of Tech.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
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“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of October, two thousand twelve.

PRESENT: GUIDO CALABRESI,
         REENA RAGGI,
         SUSAN L. CARNEY,
                   Circuit Judges.

-------------------------------------------------------------------------------------
XU-SHEN ZHOU,
                                       Plaintiff-Appellant,
                              v.                                                        No. 11-4370-cv

STATE UNIVERSITY OF NEW YORK INSTITUTE OF
TECHNOLOGY, DR. LISA BERARDINO, personally
and in her official capacity, DR. STEPHEN HAVLOVIC,
personally and in his official capacity, DR. WILLIAM
LANGDON, personally and in his official capacity, DR.
PETER SPINA, personally and in his official capacity,
                              Defendants-Appellees.*
-------------------------------------------------------------------------------------


FOR APPELLANT:                         Ross P. Andrews, Satter & Andrews, LLP, Syracuse, New York.



          *
           The Clerk of Court is directed to amend the official caption as shown above.
FOR APPELLEES:             Denise A. Hartman, Laura Etlinger, Assistant Solicitors General,
                           Barbara D. Underwood, Solicitor General, for Eric T.
                           Schneiderman, Attorney General of the State of New York,
                           Albany, New York.

      Appeal from a judgment of the United States District Court for the Northern District

of New York (Glenn T. Suddaby, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on September 14, 2011, is AFFIRMED IN PART and

VACATED IN PART, and the case is REMANDED for further proceedings.

      Xu-Shen Zhou, a former faculty member of the State University of New York Institute

of Technology’s (“SUNY IT”) School of Business, appeals from an award of summary

judgment in favor of defendants SUNY IT, Dr. Lisa Berardino, Dr. Stephen Havlovic, Dr.

William Langdon, and Dr. Peter Spina, on his claims of retaliation under 42 U.S.C. § 1981;

Title VII, see 42 U.S.C. § 2000e-3(a); and the New York State Human Rights Law

(“NYSHRL”), see N.Y. Exec. Law § 296(1)(e). See Xu-Shen Zhou v. SUNY Inst. of Tech.,

No. 6:08-cv-444, 

, at *13 (W.D.N.Y. Sept. 14, 2011).1 Zhou contends that

defendants were not entitled to summary judgment because he introduced sufficient evidence

to establish (1) a prima facie case that he was terminated because he complained internally


      1
        Because retaliation claims brought under 42 U.S.C. § 1981, Title VII, and the
NYSHRL are analyzed according to the same principles, see Hicks v. Baines, 

,
164 (2d Cir. 2010); Torres v. Pisano, 

, 629 n.1 (2d Cir. 1997), we discuss them
collectively. Zhou does not appeal the award of summary judgment to defendants on his
discrimination and hostile work environment claims, and we therefore deem them
abandoned. See Norton v. Sam’s Club, 

, 117 (2d Cir. 1998).

                                            2
about Langdon’s discriminatory treatment of Asian faculty members, and (2) that defendants’

purportedly legitimate justification was a pretext for unlawful retaliation. We review an

award of summary judgment de novo, viewing the evidence in the light most favorable to the

non-moving party and drawing all reasonable inferences in his favor. See Townsend v.

Benjamin Enters., Inc., 

, 47 (2d Cir. 2012). We assume the parties’ familiarity

with the facts and record of the underlying proceedings, which we reference only as

necessary to explain our decision.

1.     Prima Facie Case

       The district court concluded that Zhou failed to establish a prima facie case of

retaliation because there was insufficient evidence to permit a finding that Zhou engaged in

protected conduct known to defendants. See Hicks v. Baines, 

, 164 (2d Cir.

2010). Zhou contends that this determination was erroneous in light of evidence that he

complained to defendant Havlovic, dean of SUNY IT’s School of Business, and Anthony

Panebianco, Vice President of Human Resources, about (1) Langdon’s attempt to coerce

Zhou into authoring a paper for Langdon or including Langdon on a paper Zhou wrote, and

(2) Langdon’s previous attempts to coerce other Asian faculty members in the same manner.

See Zhou Decl. ¶ 21, J.A. 493 (stating that Zhou “told Panebianco about Langdon’s conduct,

made clear that I had felt very intimidated, and told him that Langdon had targeted other

Asian faculty in the past to try to get them to list him on their papers”); 

493

(stating that Zhou told Havlovic the same thing he told Panebianco); see also Zhou Dep.

                                              3
179–80, J.A. 263–64 (discussing Zhou’s complaint to Panebianco about Langdon’s similar

attempts to intimidate other Asian faculty members). We agree that Zhou carried his burden

to establish a genuine issue that he engaged in protected conduct known to all defendants,

except Spina.

       Viewed in the light most favorable to Zhou, the evidence shows that he complained

internally about a colleague’s misconduct that appeared to be motivated by race or national

origin. This evidence would permit a jury to find that Langdon attempted to coerce Zhou and

two other Asian faculty members into sharing credit for their work in exchange for promises

that Langdon would protect them from negative personnel evaluations. Although Zhou’s

deposition testimony and affidavit about these events could have been more detailed, the

limited evidence of Zhou’s complaints to his supervisor and a human resources executive

about coercion directed at Asian faculty members was sufficient to demonstrate protected

conduct. See, e.g., Feingold v. New York, 

, 145, 156 (2d Cir. 2004) (holding

that complaint to supervisor about discrimination was protected conduct under Title VII).

       Zhou’s failure to use the word “discrimination” in complaining to Panebianco and

Havlovic, see Xu-Shen Zhou v. SUNY Inst. of Tech., 

, at *13, does not

change our analysis. There is no requirement that, to have engaged in protected conduct and

thus presented a prima facie claim of retaliation, an employee must have used specific words.

Rather, Zhou only needed to put forward evidence showing that he had a good faith belief

that the complained-of mistreatment was based on his race or nationality, and that

                                             4
Panebianco and Havlovic were aware that Zhou’s complaint was directed at that alleged

unlawful conduct. See Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 

, 292

(2d Cir. 1998). Zhou’s complaints to Panebianco and Havlovic expressly addressed

Langdon’s harassment of Asian faculty members, which was adequate to demonstrate his

good-faith belief that his complaints concerned prohibited discrimination, and to alert

Panebianco and Havlovic to the race-based nature of Zhou’s protest. We therefore disagree

with defendants’ contention that, as a matter of law, Zhou’s statements to Panebianco and

Havlovic that “Langdon had targeted other Asian faculty in the past to try to get them to list

him on their papers,” Zhou Decl. ¶ 21, J.A. 493, were “too ambiguous” to put them on notice

as to Zhou’s claim of discriminatory treatment, Appellees’ Br. 23. Zhou has adduced

sufficient evidence to raise a triable issue of fact on the question of notice to support a

necessary trial as to defendants Havlovic and SUNY IT.

       We reach the same conclusion as to defendants Berardino, who admitted at her

deposition that she knew of Zhou’s internal complaints, and Langdon, whom Berardino

consulted in the course of conducting the College Wide Committee’s review of Zhou’s

application for renewal of his teaching contract. Viewing Berardino’s deposition testimony

in the light most favorable to Zhou, and in the context of her significant involvement in

Zhou’s employment review, which, as we discuss infra, was marked by inconsistencies and

irregularities, we determine that the record is sufficient to establish Berardino’s and

Langdon’s awareness of the nature of Zhou’s complaint and, thus, to sustain this element of

Zhou’s prima facie case against them.

                                              5
         Nevertheless, defendant Spina is entitled to summary judgment on the claims brought

against him in his individual capacity, as nothing in the record indicates that Spina was aware

of Zhou’s complaints to Panebianco and Havlovic.

         Defendants do not contest Zhou’s satisfaction of the remaining elements of his prima

facie claim, i.e., that he suffered an adverse employment action and that there was a causal

connection between his complaints to Panebianco and Havlovic and the decision not to renew

Zhou’s employment contract. See Hicks v. 

We therefore do not

consider these elements further. See Norton v. Sam’s Club, 

, 117 (2d Cir.

1998).

2.       Pretext

         Additionally, the district court determined that Zhou had failed to adduce facts

demonstrating that defendants’ legitimate, non-retaliatory justifications for not renewing

Zhou’s teaching contract were a pretext for retaliation. See Hicks v. 

(discussing plaintiff’s burden to demonstrate that “retaliatory motive played a part

in the adverse employment actions even if it was not the sole cause” (internal quotation

marks omitted)).      In summary, these justifications included Zhou’s low Individual

Development and Educational Assessment (“IDEA”) scores, which measured Zhou’s

teaching evaluations by students; student complaints about Zhou’s classroom performance;


         2
        We note that the entry of summary judgment in favor of Spina may affect the
causation analysis.

                                              6
and the independent recommendations not to renew Zhou’s contract by Havlovic, SUNY IT

Vice President Rosemary Mullick, and the Peer Review Committee composed of Zhou’s

colleagues in the School of Business. See Xu-Shen Zhou v. SUNY Inst. of Tech., 

, at *13.

       Zhou contends that he introduced evidence showing that these justifications were not,

in fact, the motivating factor for the non-renewal of his contract. In particular, Zhou

emphasizes record evidence showing that the review process for his renewal application was

marked by irregularities and that another faculty member with lower average teaching

evaluations had her contract renewed while Zhou did not. See DeMarco v. Holy Cross High

Sch., 

, 171 (2d Cir. 1993) (discussing factors relevant to pretext analysis, including

“whether the asserted reason for the challenged action comports with the defendant’s policies

and rules, whether the rule applied to the plaintiff has been applied uniformly, and whether

the putative non-discriminatory purpose was stated only after the allegation of

discrimination”). This evidence included:

       (1) Zhou’s sworn declaration that before he complained to Havlovic about
       Langdon, Havlovic had told Zhou that students had given him positive
       evaluations, and that the student complaints against him were “closed issues,”
       Zhou Decl. ¶ 23, J.A. 493.

       (2) The filing of only one more student complaint against Zhou after the first
       three were deemed closed.

       (3) The decision of the School of Business’s Peer Review Committee, which
       included Langdon, to overrule the recommendation of the Personnel
       Committee to renew Zhou’s contract based in part on Langdon’s negative
       comments about Zhou’s performance.

                                               7
       (4) The fact that at the next step of review before SUNY IT’s College Wide
       Committee, Berardino, who was responsible for assembling Zhou’s application
       for renewal and who was aware of Zhou’s complaints to Panebianco and
       Havlovic, solicited performance feedback from Langdon but did not seek such
       feedback from other applicants’ colleagues.

       (5) Berardino’s initial presentation to the College Wide Committee, which
       included information demonstrating Zhou’s low IDEA scores, but omitted
       positive information relating to other criteria relevant to renewing Zhou’s
       contract, such as research, university service, and professional development,
       which were featured in other applicants’ presentations.

       (6) The College Wide Committee’s criticism of the “paucity and non-
       representativeness of the information” in the Peer Review Committee’s
       recommendation to deny Zhou’s application for renewal, J.A. 519, and its
       recommendation that, based on a revised presentation by Berardino, Zhou’s
       contract be renewed for one year.

       (7) Acknowledgment by a member of the College Wide Committee that the
       Peer Review Committee included Langdon, who had a “personal conflict” with
       Zhou. Berardino Decl. ¶ 26, J.A. 380.

       (8) Havlovic’s independent recommendation not to extend Zhou’s contract
       because of his teaching evaluations, even though the College Wide Committee
       had recommended renewal and Zhou received higher average IDEA scores
       than another employee whose contract was renewed.

       We do not suggest that these facts would compel a pretext finding in Zhou’s favor.

We conclude only that, when viewed in the light most favorable to Zhou, they raise a triable

issue of fact that a factfinder, after assessing the credibility of the parties and pertinent

witnesses, could resolve in Zhou’s favor.




                                             8
3.    Conclusion

      Accordingly, we conclude that, with the exception of Spina, defendants were not

entitled to summary judgment on Zhou’s retaliation claims. The judgment of the district

court is therefore AFFIRMED IN PART and VACATED IN PART, and the case is

REMANDED for further proceedings.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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