Chen v. City College, Part II (the dissent)

In this Title VII retaliation case, the Court of Appeals ruled 2-1 that an Asian Studies professor at City College did not have a retaliation case stemming from her termination that closely followed her internal discrimination charge. I wrote about the majority decision here. Now it's time for the dissent, which sees the case very differently.

The case is Chen v. City University of New York, decided on October 28. Plaintiff filed an internal discrimination complaint in connection with a strange student who took up her time and became a pest. Plaintiff consulted with a College administrator, Lesen, who advised plaintiff on how to deal with the student. At the time of the meeting, the student was no longer in plaintiff's class, but he intended to enroll in one of her courses the following semester. Lesen and another College actor, Calichman, did not like how plaintiff handled her meeting with the student (they were surprised that she met with the student right away and she wanted him to agree to certain behaviors). After Lesen and Calichman placed those concerns in writing, plaintiff accused them of discrimination, alleging in part that Lesen had engaged in ethnically degrading behavior during the counseling meeting with plaintiff. Shortly thereafter, plaintiff was terminated. The College defended this decision based on her inability to get along with others. As fully discussed here, the majority says plaintiff has no case because the College was concerned about plaintiff's collegiality even prior to her discrimination complaint.

Judge Chin dissents, and it's quite lengthy. Bear in mind that, in private practice, Judge Chin represented plaintiffs in Title VII cases. So he has seen these cases from the plaintiff's side. He was also a trial judge before rising to the Court of Appeals, so he knows what inferences juries may draw in cases like this. Here are his main points:

1. The district court and appellate majority resolved disputed fact issues in finding that plaintiff failed to handle the student according to Lesen's instructions. "Chen contends that Lesen instructed her to
confront the Student and set up boundaries even though he was not then enrolled in her class, and that Lesen suggested that Chen do so immediately, that is, before the end of the semester. In contrast, Lesen denies that she suggested that Chen should interact with the Student before the end of the semester and contends specifically that she told Chen 'not to deal with these behaviors before they actually occurred.'"

2. Judge Chin also noted that the district court said 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 That finding in favor of the College may be true, Judge Chin says, but "while the actions might have been 'entirely consistent' with the concept of progressive discipline, they also could have been found by a reasonable jury to be retaliatory."

3. The timeline suggests defendants retaliated against plaintiff. The meeting with the student happened on May 13, 2009. Chen met with College officials a week later to discuss that incident. Only 18 days later, Calichman recommends that Chen be removed as Director of the Asian Studies Program. On August 25, 2009, plaintiff files an internal discrimination complaint. Two months later, Chen is denied reappointment. A few weeks after filing a complaint with the State Division of Human Rights, she learns she is permanently terminated. "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."

4. Her positive performance reviews permits the inference of retaliation, as they praised her scholarship and other achievements. She was also promoted as Interim Director of the Asian Studies program in her three years at City College. Second Circuit law -- Stratton v. Department of the Aging, 132 F.3d 869 (2d Cir. 1997), a decision written by Judge Chin -- holds that a history of positive evaluations can support the plaintiff's discrimination claims, as they rebut management's claim that plaintiff does not deserve to work there.

5. The jury could find Calichman tainted the reappointment process because he knew about her internal discrimination complaint and actively advocated against her reappointment. The other seven professors who were up for reappointment that year all received it unanimously, but plaintiff did not any receive any favorable votes.

6. Plaintiff's punishment was disproportionate to her alleged misconduct. A SDNY case -- Nembhard v. Memorial Sloan-Kettering, 918 F. Supp. 784 (SDNY 1996), another decision written by Judge Chin -- supports this reasoning. As plaintiff was well-regarded for three years and reappointed twice, the jury could find she deserved a less severe punishment than termination.

7. Moving right along, Judge Chin further funds that the College offered shifting explanations to explain plaintiff's termination. Shifting explanations often point to pretext, because it suggests the employer is dissembling, coming up with new justifications to either bolster its case or to abandon weaker defenses that did not quite work. At first, in letting plaintiff go, the College said nothing about collegiality problems. It only referenced plaintiff's handling of the incident with the student. But in litigation, the College argued that it got rid of her because of "her longstanding inability to work in a colliegial manner with other faculty members, and her inappropriate conduct with respect to the student."

To Judge Chin, this is a lot of pretext, creating a "mosaic of facts" supporting her retaliation claim. The majority (Winter and Livingston) is not buying it. This is a close case, for sure, highlighting the fault line in retaliation cases. When does the plaintiff's prior performance problems knock out her retaliation claims attacking a later adverse action? When do shifting explanations establish pretext, and what exactly is a shifting explanation? Must the explanations be radically different from each other, or is it enough that the explanations have slight variations? And can you show pretext when the employer arguably goes too far in terminating the plaintiff's employment? There may never be a case that conclusively answers these questions.