Ya-Chen Chen v. City Univ. of N.Y.

• Decision Date: 28 October 2015
• Docket Number: No. 14–1469–cv.,14–1469–cv.
• Citation: 805 F.3d 59
• Parties: YA–CHEN CHEN, Plaintiff–Appellant, v. The CITY UNIVERSITY OF NEW YORK, Robert Paaswell, Individual and Official Capacity, Beth Lesen, Individual and Official Capacity, Richard F. Calichman, Individual and Official Capacity, Geraldine Murphy, Individual and Official Capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

805 F.3d 59

YA–CHEN CHEN, Plaintiff–Appellant

v.The CITY UNIVERSITY OF NEW YORK, Robert Paaswell, Individual and Official Capacity, Beth Lesen, Individual and Official Capacity, Richard F. Calichman, Individual and Official Capacity, Geraldine Murphy, Individual and Official Capacity, Defendants–Appellees.

No. 14–1469–cv.

United States Court of Appeals, Second Circuit.

Argued: March 25, 2015.

Decided: Oct. 28, 2015.

Matthew S. Porges, Law Office of Matthew S. Porges, Esq., Brooklyn, N.Y., for Plaintiff–Appellant.

David Lawrence III, Assistant Solicitor General, Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Defendants–Appellants.

Before: WINTER, LIVINGSTON, and CHIN, Circuit Judges.

Opinion

Judge CHIN concurs in part and dissents in part in a separate opinion.

DEBRA ANN LIVINGSTON, Circuit Judge:

Beginning in September 2007, Plaintiff–Appellant Ya–Chen Chen served as an assistant professor of Asian Studies in the Department of Foreign Languages and Literatures at the City College of New York (“CCNY”), a school in the City University of New York (“CUNY”) system. She also acted as Interim Director of the Asian Studies program during the 2008–2009 academic year. As that school year drew to a close, Chen had a negative encounter with a student. Members of the administration—including Defendants–Appellants Beth Lesen, Richard F. Calichman, and Geraldine Murphy—informed Chen that, in their view, she had handled the incident inappropriately. Chen disagreed with this assessment and expressed her opinion to those administrators. In July 2009, CCNY informed Chen that she would not be reassigned to a second year as Interim Director of the Asian Studies program. Several months later, CCNY's Department of Foreign Languages and Literatures undertook its annual review of assistant professors, who must be reappointed each year until they receive tenure. The Department decided against reappointing Chen for the 2010–2011 academic year. Chen unsuccessfully appealed this decision through two stages of administrative review, and finally to CCNY's President, Defendant–Appellant Robert Paaswell.

Following her appeals, Chen filed suit against CUNY, Calichman, Lesen, Murphy, and Paaswell in the United States District Court for the Southern District of New York (Abrams, J. ). She argued that CUNY violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and that the individual defendants violated the Equal Protection Clause and the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8–107, because they discriminated against Chen on the basis of her race, gender, and national origin, and retaliated against her for an internal complaint that she filed against Calichman, Lesen, and Murphy in August 2009. Following discovery, the district court granted summary judgment to the defendants on all of Chen's claims. We agree with the district court's decision, and therefore affirm.

BACKGROUND

A. Factual Background

1. Chen's Employment at CCNY

CCNY is the flagship institution in the CUNY system. To identify and attract talented educators and scholars, the College hires them as assistant professors—a tenure-track position subject to annual review and renewal. Every year, an executive committee in each of CCNY's departments evaluates the assistant professors under its jurisdiction before deciding whether to reappoint them. The committees consider the candidates' “teaching effectiveness,” “scholarly and professional growth,” “service” to the public and the institution, J.A. 180, and whether candidates demonstrate “satisfactory qualities of personality and character ... and [a] willingness to cooperate with others for the good of the institution.” J.A. 166. As assistant professors move closer to tenure, the evaluations become “progressively rigorous ... to reflect the greater expectations of more experienced faculty members.” J.A. 181.

In September 2007, Chen secured a position as an assistant professor of Asian Studies in CCNY's Department of Foreign Languages and Literatures. Chen, a Taiwanese woman, is a scholar in the fields of East Asian languages and cultures, Chinese comparative literatures, and women's and gender studies. She holds degrees from the National Sun Yat-sen University in Taiwan, Columbia University, and Purdue University, and has published three books and over twenty articles in academic journals.

During the 2007–2008 school year, Chen taught two Chinese courses in the fall, worked on two books and several academic articles, and undertook several projects within the Asian Studies program. In Chen's annual evaluation, Richard F. Calichman, the Chair of the Department of Foreign Languages and Literatures, recorded his impression of Chen's first year at CCNY in a memorandum dated June 2, 2008. He noted that Chen was a “committed teacher and scholar” who had done “everything that was asked of her in terms of department service.” J.A. 185. Calichman, however, had also “received several faculty complaints regarding what some perceive[d] as her overaggressiveness and lack of tact.” Id. These “complaints were voiced primarily in the fall semester,” Calichman noted, “suggesting that Prof. Chen has since improved her relations with other faculty in the department.” Id. Nonetheless, Calichman stated that he would “continue to monitor th[e] situation.” Id. Chen was reappointed for the 2008–2009 academic year.

This academic year proved to be a fateful one for the Plaintiff–Appellant. Heading into the year, the President of CCNY appointed Chen as the Interim Director of the Asian Studies program. In addition to this role, Chen was scheduled to teach one of two introductory Chinese courses offered by the Department of Foreign Languages and Literatures during the spring. Spring semester began on January 28, 2009. That morning, Chen met a middle-aged male student (the “Student”) who had registered for her Chinese course. The Student's “persistent demands for [Chen's] time and attention,” in Chen's words, quickly became a problem. J.A. 60.

On that first day of classes, the Student, who had earlier written Chen to express his interest in taking her class, appeared at Chen's office for office hours and stayed there for about two hours until class began. He then attended class and, when the instructional period ended, waited for Chen before leaving the classroom. As Chen left, he followed her out the door, “talking with” her as she went from the classroom back to her office. J.A. 476. The Student engaged in similar behavior on two subsequent class days. Chen found his conduct strange, and she reports that she grew increasingly apprehensive on account of his behavior in these encounters. In an effort to show the Student that he was spending too much time in her office, Chen pointed out that “other people” had been waiting to speak with her “for more than ten minutes or fifteen minutes.” J.A. 480. She did not, however, tell him that he made her feel afraid or that she felt he was acting inappropriately.

After these three classes, Chen approached Calichman about the Student, described the situation, and asked that the Student be transferred out of her class. Chen says that Calichman “gave [her] verbal support” and “immediately approved to transfer” the Student to the other introductory Chinese course, effective February 5. J.A. 481. The Student appeared in the Asian Studies office shortly before Chen's scheduled classes on six subsequent days between February 5 and March 5. When he tried to speak with her on at least one occasion, Chen “just [said] hi and then immediately continue[d] to [her] classroom.” J.A. 484. These encounters stopped, however, in early March, and Chen thereafter had no contact with the Student for about two months.

At that point, at the end of April, Chen began to focus on class enrollment for the fall semester of 2009. Chen knew that she would be teaching the only upper-level Chinese course in the fall and she asked the other introductory Chinese professor about which students planned to continue with Chinese studies. The professor told her that the Student intended to register for the upper-level course. Concerned about dealing with the Student again, Chen sent Calichman an email explaining the situation. Calichman forwarded her message to John Reynolds, the Dean of CCNY's Humanities Division, who asked Deputy Dean Geraldine Murphy to meet with Chen about the situation. Murphy met with Chen on May 6, 2009 and, after Chen informed her that the Student was neither physically nor sexually threatening, directed Chen to speak with CCNY's Director for Students with Disabilities, Beth Lesen, who “regularly teaches courses on dealing with difficult students.” J.A. 219.

The next day, Chen met with Lesen. Chen recalled that Lesen was “understanding and supportive,” and provided examples of how Chen could “set up boundaries with the student” if he joined her class—for instance, by informing him that he might “consider finding a tutor” so as to benefit from more individualized instruction than she could provide, or by reserving portions of her office hours for other students. J.A. 501–02. Shortly after the meeting, Lesen sent Chen a follow-up email 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 ... I will be able to step in and assist you further. Definitely keep me posted.” J.A. 442.

Chen “assumed” that this email was an instruction to meet with the Student immediately.¹ J.A. 325. As a result, she arranged for a meeting between herself, the Student, and the Student's introductory Chinese professor, Chih-ping Ma, on May 13, 2009. At the meeting, Chen presented the Student with a form entitled “Ya-chen Chen's Written Document for [the Student's] Confirmation of Understanding,” which read:

According

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