United States District Court, W.D. New York
DECISION AND ORDER
Elizabeth A. Wolford Judge.
Yang Zhao ("Plaintiff) filed this action on September
21, 2016, challenging a decision to deny her tenure at Keuka
College ("Keuka"). (Dkt. 1). In addition to Keuka,
Plaintiff names Keuka's President, Jorge Diaz-Herrerra
("Diaz-Herrerra"); Keuka's Provost, Paul
Forestell ("Forestell"); and the Chair of
Plaintiffs department, Dan Robeson ("Robeson") as
defendants. (Dkt. 3). Plaintiff claims discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. ("Title
VII") and the New York State Human Rights Law
("NYSHRL"). (Id.). Presently before the
Court are Plaintiffs motion to amend (Dkt. 16) and
Defendants' motion to dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. 12).
reasons stated below, Plaintiffs motion to amend is granted
and Defendants' motion to dismiss is granted in part and
denied in part.
a U.S. citizen of Chinese origin, alleges that she was denied
tenure by Defendants because of her ethnicity, race, and
national origin. (Dkt. 16-1 at ¶¶ 12-16). Plaintiff
was employed by Keuka as an assistant professor in the
Division of Business and Management from August 2012 to
August 2016. (Id. at ¶ 14). From February 2006
through August 2012, Plaintiff was an adjunct faculty
instructor at Keuka. (Id. at ¶ 15).
alleges that "[a]s she entered the final state of the
tenure evaluation process at the end of 2014, her performance
evaluations, classroom observation reports, and letters of
recommendation had been very positive and indicated continued
satisfactory process towards tenure." (Id. at
¶ 17). However, despite the positive reviews, the chair
of the Division of Business and Management, Defendant
Robeson, "recommended that [Plaintiff] be denied tenure
on January 18, 2015. . . ." (Id. at ¶26).
Plaintiff sought review of Robeson's decision by
Keuka's Professional Standards Committee
("PSC"). (Id. at ¶ 28). The PSC
disagreed with Robeson's recommendation, and sent a
letter to that effect to Keuka's President, Defendant
Diaz-Herrerra. (Id. at ¶29).
reviewing the recommendation of the [PSC] in support of
[Plaintiffs] promotion, the provost/vice president for
academic affairs, [Defendant] Forestell denied [Plaintiffs]
application for tenure in a letter to [Diaz-Herrerra on]
March 25, 2015." (Id. at ¶ 30). Plaintiff
alleges that Forestell's letter "was rife with
stereotyping statements and generalizations based on
[Plaintiff] being Chinese. . . ." (Id. at
¶31). Forestell's letter included observations
discounting Plaintiffs positive reviews from Chinese students
because "students from China . . . are far less likely
than American students to appear disrespectful by questioning
authority, " and that Plaintiff spoke "too quickly
to be understood." (Id. at ¶¶ 32,
35). Plaintiff further alleges that Forestell ignored
positive evaluations recommending her for tenure. (See
Id. at ¶¶ 51-57). To support his
recommendation, Forestell had unqualified individuals from
outside Plaintiffs field of study review Plaintiffs Chinese
publications and work history. (Id. at ¶¶
61-63). No other tenure candidate had been subjected to this
type of evaluation. (Id. at ¶ 64).
sent Plaintiff a letter on April 3, 2015, agreeing with
Robeson and Forestell's recommendation to deny tenure.
(Id. at ¶ 66; see also Id. at ¶
80 (stating that Diaz-Herrerra's April 3, 2015, letter
denied Plaintiff tenure)). Plaintiff thereafter complained to
Keuka's Faculty Liaison Committee ("FLC"), and
directly to Diaz-Herrerra. (Id. at ¶¶
67-68). The FLC agreed with Plaintiff, stating that "the
decisions made by the Division Chair, the Provost, and the
President to deny [Plaintiff] tenure and promotion were not
bona fide exercises of professional academic judgment and
were the result of inadequate consideration."
(Id. at ¶ 69). Plaintiff alleges that both the
PSC and the FLC were pressured by the administration to
change their findings. (Id. at ¶¶ 77-78).
claims that she suffered "depression and anxiety,
humiliation and oppression, physical harm, and emotional and
mental distress, in addition to loss of wages, salary and
other benefits, professional advancement, and other
damages" because of Defendants' actions.
(Id. at ¶89).
Court first addresses Plaintiffs motion to amend, then moves
on to Defendants' motion to dismiss.
Plaintiffs Motion to Amend
original complaint was filed on September 21, 2016 (Dkt. 1),
and the next day, Plaintiff filed an amended complaint as a
matter of right (see Dkt. 3). Plaintiff now seeks
leave to file another amended complaint. (Dkt. 16). The
factual allegations in the proposed amended complaint are
identical to those in the amended complaint. (See
Dkt. 3; Dkt. 15; Dkt. 16-1). The proposed amended complaint
only seeks to add a claim under 42 U.S.C. § 1981.
(Id. at 17-18).
Rule of Civil Procedure 15 provides that the Court
"should freely give leave [to amend] when justice so
requires." Fed.R.Civ.P. 15(a)(2). Nevertheless, "it
is within the sound discretion of the district court to grant
or deny leave to amend." McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
"A district court has discretion to deny leave for good
reason, including futility, bad faith, undue delay, or undue
prejudice to the opposing party." Id. An
amendment is futile if the proposed amended complaint does
not state a claim upon which relief can be granted.
Dougherty v. Town of N. Hempstead Bd. of Zoning
Appeals, 282 F.3d 83, 88 (2d Cir. 2002). Here,
Defendants oppose amendment on the ground of futility. (Dkt.
21-2 at 6-19).
42 U.S.C. 8 1981
All persons . . . shall have the same right in every State
and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981. The Second Circuit provides that if
the allegations in a complaint establish & prima
facie case under the McDonnell Douglas v.
Green, 411 U.S. 792 (1973) burden-shifting framework,
the plaintiff has sufficiently stated a claim under §
1981. Littlejohn v. N.Y.C., 795 F.3d 297, 307 (2d
Cir. 2015); see also Doe v. Columbia Univ., 831 F.3d
46, 56 n.9 (2d Cir. 2016) (noting that the McDonnell
Douglas burden-shifting framework applies to § 1981
cases (citing Gant ex rel. Gant v. Wallingford Bd. of
Educ, 195 F.3d 134, 146 (2d Cir. 1999)).
At the first stage of the McDonnell Douglas
analysis, the plaintiff bears the burden of establishing
& prima facie case of discrimination by showing
that: '1) [she] belonged to a protected class; 2) [she]
was qualified for the position; 3) [she] suffered an adverse
employment action; and 4) the adverse employment action
occurred under circumstances giving rise to an inference of
Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.
2008) (citation omitted).
order to survive a motion to dismiss, a plaintiff must
specifically allege the 'circumstances giving rise to a
plausible inference of racially discriminatory
intent.'" Andrews v. Fremantlemedia, N.A.,
Inc., 613 F.App'x 67, 69 (2d Cir. 2015) (citing
Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir.
1994)); see, e.g., Burgis v. N.Y.C. Dep't of
Sanitation, 798 F.3d 63, 68 (2d Cir. 2015) ("To
state a discrimination claim under ...§ 1981, plaintiffs
must sufficiently allege that defendants acted with
discriminatory intent."). Conclusory allegations of
racial discrimination are insufficient to survive a motion to
dismiss. Id. "Ultimately, the plaintiff will be
required to prove that the employer-defendant acted with
discriminatory motivation. However, in the first phase of the
case, the prima facie requirements are relaxed."
Littlejohn, 795 F.3d at 307.
The Proposed Amended Complaint Plausibly States a ...