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The 2nd U.S. Circuit Court of Appeals affirmed the district court’s dismissal of a professor’s discrimination and retaliation claims, confirming an employer’s right to legitimately terminate a rude and confrontational employee, notwithstanding claims of discrimination by the employee, as long as the inappropriate behavior is well-documented,
Ya–Chen Chen was an assistant professor of Asian studies, as well as the interim director of the Asian Studies Program, at a college that is part of the City University of New York (CUNY) system. Chen, who is from Taiwan, was by all accounts a talented scholar and hardworking professor. However, the college received several complaints regarding Chen’s confrontational and, at times, rude behavior, which was noted in her annual performance reviews.
During the spring semester of 2009, Chen had a negative encounter with a student who was enrolled in her introductory Chinese course. At first, the college was sympathetic to Chen’s concerns, which were focused on the student’s excessive use of Chen’s office hours and frequent after-class visits. In fact, the college worked with Chen to address her concerns, and the student was ultimately transferred out of Chen’s introductory Chinese class.
In the fall of 2009, Chen learned that the student intended to enroll in her upper-level Chinese course. Chen took her concerns to the college, which met with Chen to provide her with support and strategies for dealing with the student in a positive manner. Despite receiving instructions from the college on how to interact with the student, Chen demanded that the student sign a document setting conditions on his ability to take her class, such as adhering to restricted office hours and “keep[ing] an appropriate distance from professors and classmates.” The offended student reported Chen’s behavior to the college.
Given Chen’s history of complaints regarding collegiality and rudeness, combined with this student incident, Chen received a negative performance review for 2008-09, was removed from her position as department head and subsequently informed that her contract would not be renewed. Chen filed a complaint regarding the negative performance review to the college’s affirmative action committee, which conducted an investigation and found the complaint to be without merit. Chen also appealed the decision not to renew her contract. The appeal was denied.
Chen then filed suit against CUNY and several of its administrators, alleging discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act, New York human rights law and the Equal Protection Clause of the U.S. Constitution based on her race, national origin and gender. In support of these claims, Chen alleged that the incident with the student in question was “isolated,” that she followed the college’s instructions on how to handle the student and that her termination occurred in close temporal proximity to her filing the complaint.
The 2nd Circuit held that Chen failed to adduce evidence to support her claims of discrimination and retaliation, and affirmed dismissal of her claims. The court noted that CUNY maintained policies that required its professors to maintain “satisfactory qualities of personality and character,” and thus the criticisms of Chen’s aggressiveness and lack of tact were legitimate and nondiscriminatory concerns. The court also relied heavily on the fact that Chen’s lack of collegiality was well-documented in her annual performance reviews, which occurred prior to her filing the internal complaint of harassment, a fact fatal to her retaliation claim.
Ya-Chen Chen v. City Univ. of New York, 2nd Cir., No. 14-1469-CV (Oct. 28, 2015).
Professional Pointer: Employers should use performance reviews as an opportunity to honestly and clearly document performance deficiencies. In addition to being an effective performance counseling tool, performance reviews may also serve as critical evidence to defeat a discrimination or retaliation claim in the event of a performance termination.
John G. Stretton is a shareholder and William C. Ruggiero is an associate in the Stamford, Conn., office of Ogletree Deakins, an international labor and employment firm representing management.
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