     09-2301-cv
     Shelton v. Trustees of Columbia University

 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                         SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
 8   BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
 9   W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
10   M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
11   NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
15   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
16   on the 10th day of March, two thousand ten.
17
18   Present:
19                  JOSEPH M. McLAUGHLIN,
20                             Circuit Judge,
21                  DENNY CHIN,*
22                             District Judge.**
23
24   _____________________________________________________
25
26   SHAWN SHELTON,
27
28                  Plaintiff-Counter-Defendant-Appellant,
29
30                            -v-                                        (09-2301-cv)
31
32   TRUSTEES OF COLUMBIA UNIVERSITY,
33
34                  Defendant-Counter-Claimant-Appellee.
35
36
37
38


            *
            The Honorable Denny Chin, United States District Court for the Southern District of
     New York, sitting by designation.
            **
               The Honorable Rosemary S. Pooler, originally a member of the panel, did not
     participate in consideration of this appeal. The two remaining members of the panel, who are in
     agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating
     Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 1   Appearing for Appellees:       Arthur M. Toback, Toback Bernstein & Reiss, LLP, New York,
 2                                  N.Y.
 3
 4
 5   Appearing for Appellant:       Annette G. Hasapidis, South Salem, N.Y.
 6
 7          Appeal from the United States District Court for the Southern District of New York
 8   (Hellerstein, Judge).
 9
10
11        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
12   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
13
14          Shawn Shelton sued the Trustees of Columbia University (“Columbia”) for retaliatory

15   dismissal under Title IX of the Educational Amendments of 1972, race discrimination under 42

16   U.S.C. § 1981, and breach of contract. Shelton alleges that he was expelled from Columbia not

17   because of his admitted plagiarism but because he did not acquiesce to, and filed a complaint

18   about, an administrator’s sexual advances, or because of race discrimination, or both. Shelton

19   further alleges that Columbia acted arbitrarily and capriciously in expelling him. This case was

20   previously before us on appeal from a Rule 12(b)(6) motion. We affirmed in part and remanded

21   in part for repleading.

22           On remand, the district court granted Columbia’s motion for summary judgment on April

23   30, 2009. Shelton now appeals. We assume the parties’ familiarity with the underlying facts,

24   procedural history, and specification of issues for review.

25          We review a grant of summary judgment, as well as a district court’s interpretation of a

26   contract, de novo. See Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co.,

27   472 F.3d 33, 41 (2d Cir. 2006). Summary judgment is appropriate where there is “no genuine

28   issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.” Fed.

29   R. Civ. P. 56(c)(2). In determining whether a genuine issue of material fact exists, we must

30   resolve all ambiguities and draw all inferences against the moving party. See Parks Real Estate,

                                                       2
 1   472 F.3d at 41. However, the non-moving party must offer more than “conclusory allegations or

 2   unsubstantiated speculation” to defeat summary judgment; the non-moving party “must offer

 3   some hard evidence showing that its version of the events is not wholly fanciful.” Jeffreys v. City

 4   of New York, 426 F.3d 549, 554 (2d Cir. 2005) (internal quotation marks and citation omitted).

 5            Both the retaliation claim and the race discrimination claim are analyzed under the

 6   McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411

 7   U.S. 792 (1973). Under this framework, to establish a prima facie case of retaliation, the

 8   plaintiff must show that (1) he was engaged in a protected activity, (2) the institution was aware

 9   of that activity, (3) he suffered an adverse action, and (4) there was a causal connection between

10   the protected activity and the adverse action. See Holtz v. Rockefeller & Co., 258 F.3d 62, 79 (2d

11   Cir. 2001). Similarly, to establish a prima facie case of race discrimination, the plaintiff must

12   show that (1) he belonged to a protected class, (2) he was subject to an adverse action, (3) he

13   satisfactorily performed required duties, and (4) the adverse action occurred under circumstances

14   giving rise to an inference of discrimination. See Chambers v. TRM Copy Centers Corp., 43

15   F.3d 29, 37 (2d Cir. 1994).

16            Once the plaintiff presents a prima facie case, the burden then shifts to the defendant to

17   offer a legitimate non-discriminatory reason for its actions. See Weinstock v. Columbia Univ.,

18   224 F.3d 33, 42 (2d Cir. 2000). If the defendant does so, the burden returns to the plaintiff to

19   show that the proffered reason is a mere pretext for a true discriminatory motive. See id. At this

20   stage, “plaintiff may no longer rely on the presumption raised by the prima facie case, but may

21   still prevail by showing, without the benefit of the presumption, that the [adverse] determination

22   was in fact the result of . . . discrimination.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir.

23   2008).


                                                        3
 1          Here, there is no dispute that (1) Shelton committed plagiarism; (2) the plagiarism charge

 2   was preferred to a disciplinary committee by a professor not accused of discrimination or

 3   retaliation; (3) plagiarism, pursuant to published guidelines, can result in expulsion; and, (4) in

 4   accordance with published guidelines, a four-member disciplinary committee and then a full six-

 5   member committee both voted to expel Shelton, with those accused of discrimination and/or

 6   retaliation either not voting or voting for a lesser punishment. Thus, even assuming Shelton met

 7   his prima facie burden as to either charge, he failed to present evidence from which a reasonable

 8   jury could find that Columbia’s legitimate reason for his expulsion was pretextual.

 9          The district court also properly dismissed the breach of contract claim. Assuming,

10   without deciding, that a contract existed, Shelton failed to present “hard evidence,” Jeffreys, 426

11   F.3d at 554, that Columbia breached or that he satisfactorily performed, see Rexnord Holdings,

12   Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994). Because the breach of contract claim was

13   properly dismissed, Shelton’s claim for damages was also properly dismissed.

14          Accordingly, the judgment of the district court hereby is AFFIRMED.
15
16
17                                                                 FOR THE COURT:
18                                                                 Catherine O’Hagan Wolfe, Clerk
19




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