11-4370-cv
Xu-Shen Zhou v. SUNY Inst. of Tech.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
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FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of October, two thousand twelve.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
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XU-SHEN ZHOU,
Plaintiff-Appellant,
v. No. 11-4370-cv
STATE UNIVERSITY OF NEW YORK INSTITUTE OF
TECHNOLOGY, DR. LISA BERARDINO, personally
and in her official capacity, DR. STEPHEN HAVLOVIC,
personally and in his official capacity, DR. WILLIAM
LANGDON, personally and in his official capacity, DR.
PETER SPINA, personally and in his official capacity,
Defendants-Appellees.*
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FOR APPELLANT: Ross P. Andrews, Satter & Andrews, LLP, Syracuse, New York.
*
The Clerk of Court is directed to amend the official caption as shown above.
FOR APPELLEES: Denise A. Hartman, Laura Etlinger, Assistant Solicitors General,
Barbara D. Underwood, Solicitor General, for Eric T.
Schneiderman, Attorney General of the State of New York,
Albany, New York.
Appeal from a judgment of the United States District Court for the Northern District
of New York (Glenn T. Suddaby, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on September 14, 2011, is AFFIRMED IN PART and
VACATED IN PART, and the case is REMANDED for further proceedings.
Xu-Shen Zhou, a former faculty member of the State University of New York Institute
of Technology’s (“SUNY IT”) School of Business, appeals from an award of summary
judgment in favor of defendants SUNY IT, Dr. Lisa Berardino, Dr. Stephen Havlovic, Dr.
William Langdon, and Dr. Peter Spina, on his claims of retaliation under 42 U.S.C. § 1981;
Title VII, see 42 U.S.C. § 2000e-3(a); and the New York State Human Rights Law
(“NYSHRL”), see N.Y. Exec. Law § 296(1)(e). See Xu-Shen Zhou v. SUNY Inst. of Tech.,
No. 6:08-cv-444, 2011 WL 4344025, at *13 (W.D.N.Y. Sept. 14, 2011).1 Zhou contends that
defendants were not entitled to summary judgment because he introduced sufficient evidence
to establish (1) a prima facie case that he was terminated because he complained internally
1
Because retaliation claims brought under 42 U.S.C. § 1981, Title VII, and the
NYSHRL are analyzed according to the same principles, see Hicks v. Baines, 593 F.3d 159,
164 (2d Cir. 2010); Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir. 1997), we discuss them
collectively. Zhou does not appeal the award of summary judgment to defendants on his
discrimination and hostile work environment claims, and we therefore deem them
abandoned. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
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about Langdon’s discriminatory treatment of Asian faculty members, and (2) that defendants’
purportedly legitimate justification was a pretext for unlawful retaliation. We review an
award of summary judgment de novo, viewing the evidence in the light most favorable to the
non-moving party and drawing all reasonable inferences in his favor. See Townsend v.
Benjamin Enters., Inc., 679 F.3d 41, 47 (2d Cir. 2012). We assume the parties’ familiarity
with the facts and record of the underlying proceedings, which we reference only as
necessary to explain our decision.
1. Prima Facie Case
The district court concluded that Zhou failed to establish a prima facie case of
retaliation because there was insufficient evidence to permit a finding that Zhou engaged in
protected conduct known to defendants. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir.
2010). Zhou contends that this determination was erroneous in light of evidence that he
complained to defendant Havlovic, dean of SUNY IT’s School of Business, and Anthony
Panebianco, Vice President of Human Resources, about (1) Langdon’s attempt to coerce
Zhou into authoring a paper for Langdon or including Langdon on a paper Zhou wrote, and
(2) Langdon’s previous attempts to coerce other Asian faculty members in the same manner.
See Zhou Decl. ¶ 21, J.A. 493 (stating that Zhou “told Panebianco about Langdon’s conduct,
made clear that I had felt very intimidated, and told him that Langdon had targeted other
Asian faculty in the past to try to get them to list him on their papers”); id. ¶ 23, J.A. 493
(stating that Zhou told Havlovic the same thing he told Panebianco); see also Zhou Dep.
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179–80, J.A. 263–64 (discussing Zhou’s complaint to Panebianco about Langdon’s similar
attempts to intimidate other Asian faculty members). We agree that Zhou carried his burden
to establish a genuine issue that he engaged in protected conduct known to all defendants,
except Spina.
Viewed in the light most favorable to Zhou, the evidence shows that he complained
internally about a colleague’s misconduct that appeared to be motivated by race or national
origin. This evidence would permit a jury to find that Langdon attempted to coerce Zhou and
two other Asian faculty members into sharing credit for their work in exchange for promises
that Langdon would protect them from negative personnel evaluations. Although Zhou’s
deposition testimony and affidavit about these events could have been more detailed, the
limited evidence of Zhou’s complaints to his supervisor and a human resources executive
about coercion directed at Asian faculty members was sufficient to demonstrate protected
conduct. See, e.g., Feingold v. New York, 366 F.3d 138, 145, 156 (2d Cir. 2004) (holding
that complaint to supervisor about discrimination was protected conduct under Title VII).
Zhou’s failure to use the word “discrimination” in complaining to Panebianco and
Havlovic, see Xu-Shen Zhou v. SUNY Inst. of Tech., 2011 WL 4344025, at *13, does not
change our analysis. There is no requirement that, to have engaged in protected conduct and
thus presented a prima facie claim of retaliation, an employee must have used specific words.
Rather, Zhou only needed to put forward evidence showing that he had a good faith belief
that the complained-of mistreatment was based on his race or nationality, and that
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Panebianco and Havlovic were aware that Zhou’s complaint was directed at that alleged
unlawful conduct. See Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292
(2d Cir. 1998). Zhou’s complaints to Panebianco and Havlovic expressly addressed
Langdon’s harassment of Asian faculty members, which was adequate to demonstrate his
good-faith belief that his complaints concerned prohibited discrimination, and to alert
Panebianco and Havlovic to the race-based nature of Zhou’s protest. We therefore disagree
with defendants’ contention that, as a matter of law, Zhou’s statements to Panebianco and
Havlovic that “Langdon had targeted other Asian faculty in the past to try to get them to list
him on their papers,” Zhou Decl. ¶ 21, J.A. 493, were “too ambiguous” to put them on notice
as to Zhou’s claim of discriminatory treatment, Appellees’ Br. 23. Zhou has adduced
sufficient evidence to raise a triable issue of fact on the question of notice to support a
necessary trial as to defendants Havlovic and SUNY IT.
We reach the same conclusion as to defendants Berardino, who admitted at her
deposition that she knew of Zhou’s internal complaints, and Langdon, whom Berardino
consulted in the course of conducting the College Wide Committee’s review of Zhou’s
application for renewal of his teaching contract. Viewing Berardino’s deposition testimony
in the light most favorable to Zhou, and in the context of her significant involvement in
Zhou’s employment review, which, as we discuss infra, was marked by inconsistencies and
irregularities, we determine that the record is sufficient to establish Berardino’s and
Langdon’s awareness of the nature of Zhou’s complaint and, thus, to sustain this element of
Zhou’s prima facie case against them.
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Nevertheless, defendant Spina is entitled to summary judgment on the claims brought
against him in his individual capacity, as nothing in the record indicates that Spina was aware
of Zhou’s complaints to Panebianco and Havlovic.
Defendants do not contest Zhou’s satisfaction of the remaining elements of his prima
facie claim, i.e., that he suffered an adverse employment action and that there was a causal
connection between his complaints to Panebianco and Havlovic and the decision not to renew
Zhou’s employment contract. See Hicks v. Baines, 593 F.3d at 164.2 We therefore do not
consider these elements further. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998).
2. Pretext
Additionally, the district court determined that Zhou had failed to adduce facts
demonstrating that defendants’ legitimate, non-retaliatory justifications for not renewing
Zhou’s teaching contract were a pretext for retaliation. See Hicks v. Baines, 593 F.3d
at 164–65 (discussing plaintiff’s burden to demonstrate that “retaliatory motive played a part
in the adverse employment actions even if it was not the sole cause” (internal quotation
marks omitted)). In summary, these justifications included Zhou’s low Individual
Development and Educational Assessment (“IDEA”) scores, which measured Zhou’s
teaching evaluations by students; student complaints about Zhou’s classroom performance;
2
We note that the entry of summary judgment in favor of Spina may affect the
causation analysis.
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and the independent recommendations not to renew Zhou’s contract by Havlovic, SUNY IT
Vice President Rosemary Mullick, and the Peer Review Committee composed of Zhou’s
colleagues in the School of Business. See Xu-Shen Zhou v. SUNY Inst. of Tech., 2011 WL
4344025, at *13.
Zhou contends that he introduced evidence showing that these justifications were not,
in fact, the motivating factor for the non-renewal of his contract. In particular, Zhou
emphasizes record evidence showing that the review process for his renewal application was
marked by irregularities and that another faculty member with lower average teaching
evaluations had her contract renewed while Zhou did not. See DeMarco v. Holy Cross High
Sch., 4 F.3d 166, 171 (2d Cir. 1993) (discussing factors relevant to pretext analysis, including
“whether the asserted reason for the challenged action comports with the defendant’s policies
and rules, whether the rule applied to the plaintiff has been applied uniformly, and whether
the putative non-discriminatory purpose was stated only after the allegation of
discrimination”). This evidence included:
(1) Zhou’s sworn declaration that before he complained to Havlovic about
Langdon, Havlovic had told Zhou that students had given him positive
evaluations, and that the student complaints against him were “closed issues,”
Zhou Decl. ¶ 23, J.A. 493.
(2) The filing of only one more student complaint against Zhou after the first
three were deemed closed.
(3) The decision of the School of Business’s Peer Review Committee, which
included Langdon, to overrule the recommendation of the Personnel
Committee to renew Zhou’s contract based in part on Langdon’s negative
comments about Zhou’s performance.
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(4) The fact that at the next step of review before SUNY IT’s College Wide
Committee, Berardino, who was responsible for assembling Zhou’s application
for renewal and who was aware of Zhou’s complaints to Panebianco and
Havlovic, solicited performance feedback from Langdon but did not seek such
feedback from other applicants’ colleagues.
(5) Berardino’s initial presentation to the College Wide Committee, which
included information demonstrating Zhou’s low IDEA scores, but omitted
positive information relating to other criteria relevant to renewing Zhou’s
contract, such as research, university service, and professional development,
which were featured in other applicants’ presentations.
(6) The College Wide Committee’s criticism of the “paucity and non-
representativeness of the information” in the Peer Review Committee’s
recommendation to deny Zhou’s application for renewal, J.A. 519, and its
recommendation that, based on a revised presentation by Berardino, Zhou’s
contract be renewed for one year.
(7) Acknowledgment by a member of the College Wide Committee that the
Peer Review Committee included Langdon, who had a “personal conflict” with
Zhou. Berardino Decl. ¶ 26, J.A. 380.
(8) Havlovic’s independent recommendation not to extend Zhou’s contract
because of his teaching evaluations, even though the College Wide Committee
had recommended renewal and Zhou received higher average IDEA scores
than another employee whose contract was renewed.
We do not suggest that these facts would compel a pretext finding in Zhou’s favor.
We conclude only that, when viewed in the light most favorable to Zhou, they raise a triable
issue of fact that a factfinder, after assessing the credibility of the parties and pertinent
witnesses, could resolve in Zhou’s favor.
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3. Conclusion
Accordingly, we conclude that, with the exception of Spina, defendants were not
entitled to summary judgment on Zhou’s retaliation claims. The judgment of the district
court is therefore AFFIRMED IN PART and VACATED IN PART, and the case is
REMANDED for further proceedings.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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