Mucho pretext in SUNY retaliation case

The Court of Appeals reverses summary judgment in a Title VII retaliation case, finding that that the plaintiff engaged in protected activity and also undercut the defendant's reason for extending his employment contract with a trainload of pretext.

The case is Zhou v. State University of New York Institute of Technology, a summary order decided on October 10. This is a good case for plaintiffs, but its precedential value is limited as a summary order. Still, you can cite it in briefs and it also provides insight into how the Court sees retaliation cases.

In a retaliation case, the plaintiff has to complain about discrimination in good faith. If he does so, management cannot punish him for it. Plaintiff told his superiors that a Dr. Langdon had coerced Asian-American faculty members into giving him credit for their scholarly work. In complaining about this, Zhou did not say that Langdon had "discriminated" against Asian teachers. But that magic word is not necessary under Court of Appeals precedent. The Second Circuit (Raggi, Calabresi and Carney) says that "[a]lthough 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 activity." In other words, contrary to defendants' argument that Zhou's comments were too ambiguous, plaintiff said enough to put his supervisors on notice that Langdon was discriminating against Asian employees.

Can Zhou win the case? Yes, because there is a ton of pretext here. Defendants say that plaintiff's employment contract was not extended because of low student evaluations as well as student complaints about his classroom performance. A Peer Review Committee also made an independent recommendation against extending the contract. This may all be poppycock, the Court says, for a variety reasons: (1) prior to the protected activity, Zhou's supervisor told him that students had given him positive evaluations and that the student complaints against him were "closed issues"; (2) the Peer Review Committee which ruled against plaintiff based its decision in part on Langdon's negative comments about plaintiff's performance; (3) the College Wide Committee, which also ruled against plaintiff, had solicited feedback from Langdon, an unusual procedure in that similar feedback was not solicited for other applicants; (4) the College Wide Committee was given a one-sided presentation about plaintiff's accomplishments; and so on.