Friday, October 30, 2015

How to find pretext in retaliation cases: Chen v. City College Part I

Question: if judges on the Court of Appeals disagree on whether the jury can interpret the evidence to support a retaliation claim under Title VII, does it mean that the case is necessarily for the jury? That's a good question for a law review article. But in the real world, the jury does not hear the case if the plaintiff loses the appeal by a 2-1 vote. Which is what happened in this case.

The case is Chen v. City University of New York, decided on October 28. Plaintiff taught at City College in the Asian Studies Program. She had good reviews and scholarly credentials, but did not yet have tenure. Things went sour when a strange middle-aged male student took one of her classes and made persistent demands on her time and attention. Later on, the student planned to register for another of plaintiff's classes. This led plaintiff to meet with a CCNY administrator, Lesen, who advised plaintiff on how to deal with the student (who is nameless in the opinion and is referred to as "the Student"). Following this meeting, Lesen emailed plaintiff 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" she will be able to help. Plaintiff met with the student right away (before he actually enrolled in the class) and asked him to sign off on a list of appropriate student behaviors, i.e., respecting plaintiff's office hours and maintaining "harmony with classmates and respect for the instructor." The student objected and complained to Lesen about this. Lesen then met with plaintiff about the student meeting. Plaintiff testified that Lesen treated her like a child and engaged in ethnically insulting behavior during the meeting. In contrast, Lesen testified that plaintiff would not listen to her and that the meeting was "one of the most frustrating meetings I have ever had with a professor." Plaintiff then met with Lesen and the department chair, Calichman, who wrote plaintiff a memo that criticized how she dealt with the student.

Next thing plaintiff knows, Calichman recommends that CCNY deny her reappointment to another term as Interim Director of the Asian Studies Program. Plaintiff then filed an internal discrimination complaint against Lesen and Calichman, claiming they denied her equal treatment in employment arising from the student incident. Afterwards, Calichman, who sat on an executive committee that determined which professors to reappoint, voted with the rest of the committee to deny plaintiff reappointment. This ended plaintiff's career with City College.

The Court of Appeals (Livingston and Winter) agrees with the district court that no jury can find that defendants retaliated against plaintiff. While she engaged in protected activity in filing her internal discrimination complaint and she was denied these positions shortly thereafter, she cannot show the College's articulated reason for not reappointing her as Interim Director or as a professor -- "overaggressiveness and a lack of tact" with colleagues and with the student -- was pretext for retaliation. "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." Not only did decisionmakers "develop these opinions about Chen's conduct before she filed her Affirmative Action Complaint, they also maintained a consistent perspective afterwards," as evidenced by their continued belief that she had acted inappropriately with the student. While plaintiff had positive evaluations, that does not show pretext. The College's bylaws require that reappointment decisions consider whether the candidate has "satisfactory qualities of personalities and character and a willingness to cooperate with others for the good of the institution."

Interesting holding in that management was able to exploit prior concerns about plaintiff's performance to show that its reason for ending her employment was legitimate and not retaliatory. Employers often seek out this tactic in defending against discrimination claims. "If we had problems with plaintiff before she engaged in protected activity, then that activity could not been the reason she fired the plaintiff." The law is a little more nuanced than that, but the College succeeds in that argument here.

The majority also finds that plaintiff does not have a discrimination case. Her claims "revolve around the argument that she followed Lesen's instructions about setting boundaries with the Student," so defendants "must have had discriminatory motives for reacting as they did." But the Court finds this is "nothing more than a difference of opinion about [plaintiff's] actions." The Court says the jury cannot find defendants were insincere in their beliefs that plaintiff had engaged in poor judgment.

The Court split 2-1 on the retaliation claim. All three judges (including Judge Chin) agree plaintiff has no discrimination claim. I will address Judge Chin's lengthy and interesting dissent in a follow-up post. This dissent, written by one of the few federal judges in New York who represented plaintiffs in Title VII cases, runs through the many ways a plaintiff can show pretext in a discrimination case, suggesting that the College offered shifting explanations for plaintiff's termination and that it overreacted to the episode with the student.  

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