NYU processor has a retaliation claim for filing internal hostile work environment claim

The plaintiff is a professor at NYU school of dentistry who claims he suffered retaliation after filing an internal hostile work environment charge. The trial court dismissed the case on summary judgment, but the Second Circuit brings it back. The professor will have his trial.

The case is El Chaar v. New York University, a summary order issued on April 2. The hostile work environment claim is discussed at this link. After plaintiff filed his charge with the Office of Equal Opportunity (OEO), which supported his charge, he wanted to be appointed Department Chair, where there was an opening. The Dean of the College of Dentistry, Bertolami, told plaintiff, "We are not appointing the chair because of your complaint to OEO. We need to have a chilling period. And you should have been the acting chair, but because of your complaint, we can't -- I can't put you there." In another conversation, Bertolami, contemplating a search for a permanent chair, told plaintiff that he would have been a logical choice to serve as Interim Chair but that he did not appoint plaintiff "for political reasons." This conversation was recorded. Bertolami then convened a committee to search for a permanent chair. The search committee identified plaintiff as a finalist; as part of that process, a faculty survey reported mixed reviews of plaintiff. Some thought very highly of him but others said he was divisive, vindictive, a bully, and narcissistic.Plaintiff was denied the position,

The Court of Appeals holds as follows: 

1. Plaintiff can sue for retaliation over his denial of the interim Chair position. The admissions from Bertolami are enough for plaintiff to prevail. Bertolami told plaintiff he was not appointed interim Chair because he filed the OEO charge. How this claim was dismissed on summary judgment is unclear. While Bertolami may dispute some of these admissions, the Second Circuit notes the plaintiff's testimony on such a matter is enough to avoid summary judgment. The case for that is Bellamy v. City of New York, 914 F.3d 727 (2d Cir. 2019).

 2. As for the permanent chair position, plaintiff cannot prevail at trial on that claim. It is undisputed that Bertolami wanted a tenured full professor for the position and someone who was a consensus builder who was good at interpersonal relationships. Such a person was appointed to the position, While plaintiff was second choice for the position, he was not on a tenure track and "was emotional and divisive" in the department. What about the above admissions? The Court of Appeals says they are not relevant to this claim.

Bertolami’s reference to the OEO complaint in the context of his decision to appoint an external interim chair in 2018 can’t reasonably support an inference that, in the face of the above evidence—including the survey results, which indicated that El Chaar was a divisive figure—El Chaar’s OEO complaint was a but-for cause of the decision to appoint a different candidate as a permanent chair.

Moreover, El Chaar points to insufficient evidence that Bertolami’s decision to survey the department about the finalists was pretextual. It is undisputed that Bertolami regularly sought input from faculty in making hiring decisions and had, in the context of prior searches, conducted “listening tour[s]” seeking faculty input.  And it is undisputed that, because the COVID-19 pandemic made it difficult for the faculty to gather in person, Bertolami solicited the feedback in writing. Without more, the fact that Bertolami relied upon a survey of the faculty doesn’t itself show retaliatory intent.