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Zhao v. Keuka College

United States District Court, W.D. New York

September 7, 2017

YANG ZHAO, Plaintiff,


          Elizabeth A. Wolford Judge.


         Plaintiff 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).

         For the reasons stated below, Plaintiffs motion to amend is granted and Defendants' motion to dismiss is granted in part and denied in part.


         Plaintiff, 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).

         Plaintiff 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).

         "After 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).

         Diaz-Herrerra 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).

         Plaintiff 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).


         The Court first addresses Plaintiffs motion to amend, then moves on to Defendants' motion to dismiss.

         I. Plaintiffs Motion to Amend

         Plaintiffs 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).

         Federal 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).

         A. 42 U.S.C. 8 1981

         Section 1981 provides:

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 discriminatory intent.'

Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (citation omitted).

         "In 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.

         B. The Proposed Amended Complaint Plausibly States a ...

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