14-3611-cv
Chung v. City University 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 31st day of March, two thousand fifteen.

PRESENT: PIERRE N. LEVAL,
                 CHESTER J. STRAUB,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
LOUIS CHUNG,

                                       Plaintiff-Appellant,

                               v.                                                 No. 14-3611-cv

CITY UNIVERSITY OF NEW YORK, BARUCH COLLEGE,

                                 Defendants-Appellees.
----------------------------------------------------------------------

FOR PLAINTIFF-APPELLANT:                                    Brian P. Fredericks, Law Office of Brian P.
                                                            Fredericks, PC, Flushing, NY.

FOR DEFENDANTS-APPELLEES:                                   David Lawrence III, Assistant Solicitor
                                                            General (Barbara D. Underwood, Solicitor
                                                            General, Claude S. Platton, Assistant

                                                        1
                                                  Solicitor General, of counsel) for Eric T.
                                                  Schneiderman, Attorney General of the
                                                  State of New York, New York, NY.

      Appeal from an August 27, 2014 order of the United States District Court for the
Southern District of New York (Daniels, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court is AFFIRMED.

       Plaintiff-Appellant Louis Chung (“Plaintiff”) is a Chinese employee of
Defendant-Appellee Baruch College (“Baruch”), a constituent college of
Defendant-Appellee City University of New York (together with Baruch, “Defendants”).
On May 22, 2012, Plaintiff filed suit against Defendants, alleging race and national origin
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”). Defendants moved to dismiss the complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On July 9, 2013, after oral
argument, the district court entered an order granting Defendants’ motion while also
granting Plaintiff an opportunity to request leave to file an amended complaint, provided
such an amendment would not be futile. Plaintiff filed a proposed amended pleading on
September 20, 2013. The court held another hearing on January 15, 2014. By
memorandum decision and order entered August 27, 2014, the district court denied the
request for leave to amend, finding that the proposed amended pleading failed to cure the
deficiencies in the prior complaint and thus was futile. This appeal followed.

       We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.

        We review de novo a district court’s denial of leave to amend on the basis of futility.
Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). An amendment
is futile if the proposed pleading would not survive a Rule 12(b)(6) motion to dismiss.
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.
2002). On such a motion, the Court accepts all factual allegations in the complaint as true
and draws all reasonable inferences in the plaintiff’s favor. See Koch v. Christie’s Int’l
PLC, 699 F.3d 141, 145 (2d Cir. 2012). However, this tenet is “inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To withstand the motion, the
complaint must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will have “facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).

                                              2
       1. Discrimination

      Plaintiff argues that the district court erred in determining that his proposed
amended complaint fails to allege either an adverse employment action or discriminatory
animus. We disagree as to the former and therefore do not reach the latter.

       To make out a prima facie discrimination claim, a plaintiff “must demonstrate the
following: (1) [he] was within the protected class; (2) [he] was qualified for the position;
(3) [he] was subject to an adverse employment action; and (4) the adverse action occurred
under circumstances giving rise to an inference of discrimination.” United States v.
Brennan, 650 F.3d 65, 93 (2d Cir. 2011) (internal quotation marks and citation omitted).
“[A] discrimination complaint need not allege facts establishing each element of a prima
facie case of discrimination to survive a motion to dismiss,” E.E.O.C. v. Port Auth. of N.Y.
& N.J., 768 F.3d 247, 254 (2d Cir. 2014) (citing Swierkiewicz v. Sorema N. A., 534 U.S.
506, 510 (2002)), but it must nevertheless comply with the plausibility standard set forth in
Twombly and Iqbal, id.

       For purposes of a Title VII discrimination claim by a person already employed, an
adverse employment action is defined in our Circuit as a “materially adverse change in the
terms and conditions of employment.” Sanders v. N.Y.C. Human Res. Admin., 361 F.3d
749, 755 (2d Cir. 2004) (internal quotation marks and citation omitted). Such a change
must be “more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Id. (internal quotation marks and citation omitted). Examples include
“termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular situation.” Id. (alteration in
original) (internal quotation marks and citation omitted).

       Plaintiff does not dispute that the limitations period on his claim began to run on
June 12, 2009. Accordingly, the claim must be based on an adverse employment action
that occurred on or after that date. The key allegations, then, involve Plaintiff’s receipt of
a negative performance evaluation in November 2009 and a series of incidents that
allegedly occurred after December 8, 2009. This latter batch of allegations can essentially
be summarized as follows: (1) Plaintiff was required to perform certain low-level tasks
that fall outside his job description; (2) student workers were assigned tasks for which
Plaintiff was better qualified and that did fall within his job description; (3) Plaintiff was
denied access to relevant computer programs, updates, and workshops; and (4) Plaintiff
was excluded from, and denied notice of, at least two staff meetings and at least five
meetings with student assistants.




                                              3
        Even if true, these alleged facts do not constitute an adverse employment action.
Significantly, with the exception of the negative performance evaluation and the staff
meetings, none of the allegations describes a substantial departure from the state of affairs
at the outset of the limitations period. To the contrary, Plaintiff specifically alleges that he
had already suffered a substantial reduction in his duties and responsibilities upon a
departmental transfer that took place in 2006. The allegations concerning that 2006
transfer describe incidents mirroring those detailed above, including the assignment of
low-level tasks and the denial of certain resources and training opportunities.

       The key allegation, then, is the November 2009 performance evaluation.
However, as Plaintiff concedes, a negative performance review, without more, does not
represent an adverse employment action. See Fairbrother v. Morrison, 412 F.3d 39,
56-57 (2d Cir. 2005) (surveying cases and finding that a negative evaluation was not
materially adverse where the plaintiff did not assert a detrimental effect on her salary,
benefits, or title), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53 (2006). Here, the proposed amended complaint alleges no tangible
consequences resulting from the evaluation; indeed, as noted above, the purported
diminution in responsibilities and access predated the issuance of the evaluation.

       For the reasons already discussed, Plaintiff’s argument that the performance
evaluation must be viewed in conjunction with the other alleged misconduct fails, as none
of the other allegations points to a significant reduction in duties during the limitations
period. The allegation regarding exclusion from seven meetings, five of which Plaintiff
acknowledges were for student assistants, cannot be said to represent a “significant”
diminution in Plaintiff’s material job responsibilities.

        We therefore conclude that the proposed amended complaint fails to plausibly
allege that Plaintiff suffered an adverse employment action during the limitations period.
Because a discrimination claim is necessarily implausible absent such an allegation, we
need not reach the question of whether any hypothetical injury could plausibly have been
attributed to discriminatory animus.

       2. Retaliation

       Plaintiff also disputes the district court’s determination that the proposed amended
complaint fails to state a retaliation claim, arguing that he pled sufficient facts to allege
both that he suffered an adverse employment action and that the adverse employment
action was causally connected to his complaints of discrimination. Because Plaintiff’s




                                               4
proposed amended pleading itself belies any inference of retaliatory intent, we do not
address the adequacy of the adverse employment action alleged.1

        Proof of a retaliation claim at trial requires a showing that “(1) [the employee] was
engaged in protected activity; (2) the employer was aware of that activity; (3) the employee
suffered a materially adverse action; and (4) there was a causal connection between the
protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157
(2d Cir. 2012). Swierkiewicz—and, by extension, Port Authority—applies to Title VII
retaliation claims. See Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006) (per
curiam). Thus, while the complaint need not allege facts supporting each of these
elements, it must nevertheless plead sufficient factual content to render the retaliation
claim plausible on its face. See Port Auth., 768 F.3d at 254.

        The Supreme Court has recently held that “Title VII retaliation claims must be
proved according to traditional principles of but-for causation.” Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). Ordinarily, causation may be inferred from
close temporal proximity. See Manoharan v. Columbia Univ. Coll. of Physicians &
Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). However, “[w]here timing is the only basis
for a claim of retaliation, and gradual adverse job actions began well before the plaintiff
had ever engaged in any protected activity, an inference of retaliation does not arise.”
Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).

       Here, Plaintiff allegedly filed his “Notice of Claim of Discrimination” on December
8, 2009. Subsequent to that date, he claims he “was assigned demeaning work
assignment[s] further marginalizing him” from the position he had held prior to his 2006
transfer. App. 11-12 (emphasis added). As discussed, the specific actions alleged to
have occurred after the filing of his discrimination complaint include the assignment of
low-level tasks and the denial of certain opportunities that were instead afforded to student
workers. These allegations are similar to the ones that pre-dated the December 2009
Notice of Claim, and, even where they differ, Plaintiff expressly characterizes them as a
furtherance of the earlier discrimination. That Defendants allegedly continued reducing
Plaintiff’s responsibilities and denying him access to resources and training after he filed a
discrimination complaint cannot support an inference that the later-in-time actions were
1
         Though the phraseology is the same, the concept of an “adverse employment action” is broader in
the retaliation context than in the discrimination context. See Burlington N., 548 U.S. at 67 (“The scope of
the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and
harm. We therefore reject . . . standards . . . that have treated the antiretaliation provision as forbidding the
same conduct prohibited by the antidiscrimination provision . . . .”); Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 720 n.6 (2d Cir. 2010) (observing that “an action need not affect the terms
and conditions of a plaintiff’s employment for purposes of a retaliation claim”). Our analysis of the
discrimination claim is thus not dispositive of the retaliation claim.


                                                       5
motivated by retaliatory intent. The proposed pleading fails to state a plausible retaliation
claim.

      Because Plaintiff’s proposed amended complaint would not survive a Rule 12(b)(6)
motion to dismiss, the district court did not err in denying Plaintiff leave to amend. See
Dougherty, 282 F.3d at 87-88.

       We have considered Plaintiff’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the district court’s order denying leave to amend the
complaint.

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




                                             6
