11-1656-cv
Jay Jian-Qing Wang v. Swain
                               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 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: REENA RAGGI,
         DENNY CHIN,
         SUSAN L. CARNEY,
                   Circuit Judges.

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JAY JIAN-QING WANG,
                                 Plaintiff-Appellant,

                              v.                                      No. 11-1656-cv

MARY ANN SWAIN, ERIC J. COTTS, ROBERT L.
POMPI, M. STANLEY WHITTINGHAM,
JEAN-PIERRE MILEUR,
                    Defendants-Appellees,

PAUL C. PARKER,
                                   Defendant.
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FOR APPELLANT:                           Jay Jian-Qing Wang, pro se, Vestal, New York.

FOR APPELLEES:                           Barbara D. Underwood, Solicitor General, Andrea Oser,
                                         Deputy Solicitor General, Andrew B. Ayers, Assistant
                                         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 (Thomas J. McAvoy, Judge).

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

DECREED that the judgment entered on March 14, 2011, is AFFIRMED.

       Plaintiff Jay Jian-Qing Wang appeals pro se from an award of summary judgment on

his claims under 42 U.S.C. § 1983 that defendants, professors and administrators at the State

University of New York at Binghamton, unlawfully denied him tenure on account of, inter

alia, his Chinese origin and retaliated against him for filing a complaint of discrimination

with the Equal Employment Opportunity Commission. We review an award of summary

judgment de novo, construing the record evidence in the light most favorable to the

non-moving party, see El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010),

and in doing so afford plaintiff’s pro se submissions the customary liberal reading, see

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).

       We affirm the challenged grant of summary judgment for substantially the reasons

stated in the district court’s well-reasoned Decision and Order. Specifically, plaintiff has

failed to raise a triable issue of fact as to whether the decision to deny him tenure—a decision

reached unanimously at every level of review and reasonably supported by the record

evidence—was the product of unlawful discrimination. See Zahorik v. Cornell Univ., 729

F.2d 85, 94 (2d Cir. 1984) (affirming summary judgment on discrimination claim arising

from denial of tenure where record “fail[ed] to demonstrate more than a disagreement as to


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scholarly merits”). Nor has plaintiff put forth evidence that would support a retaliation claim

against any of the named defendants.

       Because plaintiff does not challenge the district court’s grant of summary judgment

regarding his stigma-plus claim, we deem that claim abandoned. See LoSacco v. City of

Middletown, 71 F.3d 88, 92 (2d Cir. 1995). Moreover, to the extent plaintiff’s submissions

on appeal may be read to raise a hostile work environment claim, we decline to consider that

claim as it was not asserted below. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d

129, 133 (2d Cir. 2008) (holding that argument available but not made in district court is

unpreserved for appeal).

       We have considered all of plaintiff’s other arguments and conclude that they are

without merit. The judgment of the district court is AFFIRMED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, Clerk of Court




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