20-1341-cv Gong v. City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 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 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of February, two thousand twenty-one.

PRESENT: JOHN M. WALKER, JR., RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges. _______________________________________

HONGMIAN GONG,

Plaintiff-Appellant,

v. No. 20-1341

CITY UNIVERSITY OF NEW YORK,

Defendant-Appellee.*

_______________________________________

FOR PLAINTIFF-APPELLANT: G. OLIVER KOPPELL (Daniel F. Schreck, on the brief), Law Offices of G. Oliver Koppell & Associates, New York, NY.

FOR DEFENDANT-APPELLEE: ERIC DEL POZO, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Anisha S. Dasgupta, Deputy Solicitor

* The Clerk of Court is directed to amend the caption as set forth above. General, on the brief), for Letitia James, Attorney General for the State of New York, New York, NY.

On appeal from the United States District Court for the Southern District of New York

(Lorna G. Schofield, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Hongmian Gong appeals from a judgment of the district court, entered

on March 27, 2020, in favor of her employer, City University of New York (“CUNY”). Gong, an

Asian American professor of geography at CUNY Hunter College, brought this action pursuant to

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, alleging discrimination, hostile

work environment, and retaliation. We assume the reader’s familiarity with the record.

In fall 2017, CUNY removed Gong from the graduate advisor and fellowship coordinator

positions at the university. CUNY says that it decided to remove her based on its finding pursuant

to an investigation that Gong mismanaged graduate student funds. But Gong claims that CUNY

has long discriminated against her because of her race and national origin, including by delaying

her professorship promotions, assigning her to teach two courses on East Asian and Chinese

geography, directing her to hold evening office hours for graduate advising while Caucasian

faculty members who also advised graduate students were not similarly required, replacing her

with a Caucasian adjunct professor on a search committee, and organizing a faculty meeting that

included presentations criticizing certain actions by the People’s Republic of China, particularly

in the South China Sea. The district court dismissed Gong’s discrimination and hostile work

2 environment claims, finding that Gong’s allegations did not raise a plausible inference of

discrimination or rise to the level of pervasive and severe conduct that altered the conditions of

her employment. See Gong v. City Univ. of New York, No. 18-CV-3027,

, at *4,

*7 (S.D.N.Y. Feb. 27, 2019) (“Gong I”). The court also granted CUNY summary judgment on

Gong’s retaliation claim, finding that CUNY had articulated a legitimate reason for Gong’s

removal, and that Gong had failed to show that CUNY’s proffered reason was a pretext for

retaliation. See Gong v. City Univ. of New York, No. 18-CV-3027,

, at *4

(S.D.N.Y. Mar. 25, 2020) (“Gong II”). This appeal followed.

We review the grant of a motion to dismiss and of summary judgment de novo. Aegis Ins.

Servs., Inc. v. 7 World Trade Co.,

(2d Cir. 2013). When reviewing a Rule

12(b)(6) dismissal, we “accept[] all factual claims in the complaint as true and draw[] all

reasonable inferences in the plaintiff’s favor.” United States v. Strock,

(2d Cir.

2020) (internal quotation marks and citation omitted). When reviewing a grant of summary

judgment, we must “construe the evidence in the light most favorable to the non-moving party”

and find that “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” ING Bank N.V. v. M/V Temara,

(2d Cir. 2018)

(internal quotation marks and citation omitted); see also Fed. R. Civ. P. 56(a).

We affirm the district court’s February 27, 2019, dismissal of Gong’s discrimination and

hostile work environment claims. See Gong I,

at *9. Gong’s discrimination

claim fails because Gong did not adequately allege that her race or national origin was a motivating

factor in CUNY’s decision to remove her from the graduate advisor and fellowship coordinator

3 positions. See Vega v. Hempstead Union Free Sch. Dist.,

(2d Cir. 2015) (“[A]

plaintiff must plausibly allege that (1) the employer took adverse action against h[er] and (2) h[er]

race, color, religion, sex or national origin was a motivating factor in the employment decision.”).

Gong claims that the district court failed to consider how all the alleged incidents together give

rise to a plausible inference of discrimination. But Gong’s complaint does not identify the “bits

and pieces of information” necessary “to support an inference of discrimination, i.e., a mosaic of

intentional discrimination” in relation to the adverse employment action at issue. See

(internal quotation marks and citation omitted). For many of the alleged incidents, Gong does not

explain how they are connected to her race or national origin. The allegations that are related to

Gong’s race or national origin—for example, Gong’s course assignments, being replaced on a

search committee, being directed to hold evening office hours, and the faculty meeting—are not

connected to her removal from the graduate advisor and fellowship coordinator positions and fail

to “provide a contextual basis for inferring discrimination” for that decision. See

; see also

Henry v. Wyeth Pharm., Inc.,

(2d Cir. 2010) (“[T]he more remote and oblique

the remarks are in relation to the employer's adverse action, the less they prove that the action was

motivated by discrimination.”). Gong’s allegations, viewed together, do not plausibly give rise to

an inference that her race or national origin were motivating factors in CUNY’s decision to remove

her as a graduate advisor and fellowship coordinator.

Similarly, Gong’s hostile work environment claim fails because the alleged incidents are

too mild and “episodic” to support her claim. Raspardo v. Carlone,

(2d Cir.

2014) (“The incidents complained of ‘must be more than episodic; they must be sufficiently

4 continuous and concerted in order to be deemed pervasive.’” (quoting Alfano v. Costello,

(2d Cir. 2002))). Again, many of the alleged incidents lack any racial overtone and, in

general, the alleged incidents “were too few, too separate in time, and too mild . . . to create an

abusive working environment.” Alfano,

. Accordingly, the district court did not

err in dismissing Gong’s discrimination and hostile work environment claims. Nor did it err in

declining to sua sponte grant Gong an opportunity to amend her complaint. See Gallop v. Cheney,

(2d Cir. 2011) (“[N]o court can be said to have erred in failing to grant a request

that was not made.”); see also Porat v. Lincoln Towers Cmty. Ass’n,

(2d Cir.

2006) (“A counseled plaintiff is not necessarily entitled to a remand for repleading whenever he

has indicated a desire to amend his complaint, notwithstanding the failure of plaintiff’s counsel to

make a showing that the complaint’s defects can be cured.”).

We also affirm the district court’s March 25, 2020, decision granting CUNY summary

judgment on Gong’s retaliation claim. See Gong II,

at *4; see also Kwan v.

Andalex Grp. LLC,

, 844–46 (2d Cir. 2013) (explaining that under McDonnell

Douglas Corp. v. Green,

(1973), a plaintiff must first establish a prima facie case of

retaliation; then the defendant must offer a non-retaliatory reason for the employment action; and

then the plaintiff must show that the retaliatory reason is a “but-for cause of [the] adverse

employment action,” which she can do by––for example––demonstrating that the non-retaliatory

reason is pretextual). The record shows that CUNY did not learn about Gong’s complaint with

the Equal Employment Opportunity Commission (“EEOC”) until after it decided to remove her

from the graduate advisor and fellowship coordinator positions, and thus CUNY could not have

5 made the decision in retaliation for the EEOC complaint. See

(explaining that to establish

a prima facie case of retaliation, a plaintiff must show, inter alia, “a causal connection between

the protected activity and the adverse employment action” (internal quotation marks omitted)).

But even assuming that CUNY knew about Gong’s complaint before deciding to remove her,

CUNY proffers a legitimate, non-retaliatory reason for Gong’s removal: the university found that

Gong had mismanaged graduate student funds and neglected her responsibilities as an advisor.

Gong challenges the legitimacy of CUNY’s documents related to its decision-making process and

argues that the timeline of her EEOC complaint and removal is exceedingly suspect. “Temporal

proximity alone is insufficient to defeat summary judgment at the pretext stage.” Kwan,

. Although some of the irregularities that Gong points out in CUNY’s documents––such as

the Appeals Committee’s report––are troubling, Gong has not met her burden of producing

“sufficient evidence to demonstrate that” Gong would not have been removed from the graduate

advisor and fellowship coordinator positions “in the absence of the retaliatory motive.”

. Accordingly, the district court did not err by granting summary judgment on Gong’s

retaliation claim.

We have considered Gong’s remaining arguments and conclude that they are without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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