Title VII retaliation fails on summary judgment

This case arises from the plaintiff's prior settlement agreement with the City University of New York, which stated that she would remain in her faculty position for two years, during which time she would work toward her reappointment or tenure, i.e., completing her doctorate. The settlement grew out of a prior grievance. Plaintiff then sued CUNY, claiming that it gave her a class schedule that interfered with her reappointment or tenure, and that CUNY did so in retaliation for her prior protected activity: complaining about discrimination. The plaintiff loses on summary judgment.

The case is Brown v. CUNY, a summary order issued on February 18. Plaintiff claimed that, as a result of CUNY's alleged interference with her efforts to obtain a doctrine, she was denied tenure and terminated. The Court of Appeals holds that no jury can find that CUNY knowingly offered a false reason for her termination, that is, there is no pretext. 

Plaintiff loses, the Court of Appeals (Bianco, Perez and Kahn) holds, because she does not dispute that the settlement agreement governed her tenure application process, and that she did not complete her doctoral program, as the agreement had required. But she cannot prove that the scheduling conflicts which she claimed interfered with her doctoral programs were intentionally created by CUNY. Rather, the Court says, the evidence shows that CUNY tried on multiple occasions to accommodate her scheduling conflicts; CUNY would fix the problem when plaintiff brought it to their attention.

The Court also finds a "mismatch" between who designed plaintiff's schedule and who knew about her prior protected activity. While plaintiff complained to the Dean and HR, the one who worked on the schedule was not aware of her discrimination complaint. "The lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of a causal connection." That language derives from Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111 (2d Cir. 2000). While the Gordon case is famous for the "general corporate knowledge" rule -- that everyone in management is presumed to know about the plaintiff's protected activity, that does not get plaintiff off the hook if an individual actor was not aware of the protected activity and that lack of knowledge therefore cuts off the causal link between the protected activity and the adverse action, such as termination.