1 15-3910-cv Baldwin v. New York State, State University of New York, College at Buffalo 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Fole y Square, in the City of New York, on the 10 th day of May, two thousand seventeen.
Present: J OHN M. W ALKER , J R ., D EBRA A NN L IVINGSTON , G ERARD E. L YNCH , Circuit Judges

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_____________________________________ S USAN B ALDWIN , Plaintiff-Appellant , v. 15-3910
N EW Y ORK S TATE , S TATE U NIVERSITY OF N EW Y ORK , C OLLEGE AT B UFFALO , Defendant-Appellee

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_____________________________________ For Plaintiff-Appellant: L INDY S. K ORN , Candace R. Alnaji (on the brief), Law Office of Lindy Korn PLLC, Buffalo, New York For Defendant-Appellee: B RIAN D. G INSBERG , Victor Paladino (on the brief), Assistant Solicitors Genera l, Barbara D. Underwood, Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, Albany, New York2 UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Dr . Susan Baldwin appeals from a judgment of the United States District Court for the Western District of New York (Scott, M.J. ), entered on August 31, 2015, granting summary judgment to the Defendant-Appellee on inter alia Baldwin’s claim of retaliation under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681 et seq. She also appeals from the order denying her motion for reconsideration under Federal Rule of Civil Procedure 59(e). We assume the parties’ familiarity with the facts, procedural history, and specification of the i ssues on appeal, some of which we discuss briefly below.
I. Background 1 Baldwin began her employment at the State Un iversity of New York, College at Buffalo (“SUNY-Buffalo”), in 2002 as a l ecturer in its health and wellness department. She became an assistant professor after she obtained her Ph.D . in 2006. Baldwin received generally positive performance reviews from the head of her de partment, Dr. Scott Roberts, though Roberts repeatedly emphasized in his written appraisa ls the importance of scholarly publication for Baldwin to obtain tenure. In October 2010, he expressed concern that as of that time, “no substantial publications [we]re in print or in press.” J.A. 258. He suggested that Baldwin’s lack of peer-reviewed publications mi ght jeopardize her te nure application. Baldwin applied for tenure in September 2011. Her retaliation clai m centers on events that transpired the previous spring. At that ti me, Baldwin spoke with Roberts about complaints she had received from students concerning classr oom remarks by him that these students deemed

1 The following facts are drawn from the summary judgment record and, unless otherwise noted, are undisputed.3 inappropriate. Roberts responded that he was unaware that students felt this way and would make a general apology to the class. Baldwin also mentioned the student complaints to Mark Severson, Dean of the School of Natural and So cial Sciences, which included the health and wellness department. Roberts conducted the first review of Bald win’s tenure application that fall. He recommended that the college deny her tenure becau se of her inadequate publication record. At the time Roberts reviewed her applicatio n, Baldwin was the third author on an article—“Perceptions of Inte rnational Faculty in U.S. Colleges”—published in the International Journal of Science in Society . Roberts observed that this jour nal was not a health education or health science journal. Baldwin had anothe r article, “Professional Development through Planning for and/or Partic ipating in Accreditation,” accepted for publication in Health Promotion
Practices . Roberts noted that Health Promotion Practices was a “solid health journal” but that Baldwin’s self-stated contributi on to the article was only 25%. J.A. 261. Roberts concluded that Baldwin “ha[d] not met the minimum requirem ents [for tenure] in the area of scholarship.” Id. at 262. Next, a committee of faculty from the School of Natural and Social Sciences reviewed Baldwin’s portfolio for promotion to associate pr ofessor. By that time, Baldwin had another article—her first as lead aut hor—accepted for publication in the American Journal of Health Studies , “The Contributions of Credentialing and the C ode of Ethics to Quality Assurance in the Health Education/Promotion Profession.” The committee stated that Baldwin had a relative “lack of publications in refereed journals,” but noted other activ ities classified as scholarship, including a physical education grant proposal th at Baldwin claimed to have co-authored.4 J.A. 794. The committee recommended that Baldwi n be promoted, but was not charged with assessing whether she should also be granted tenure. During the committee’s review, Roberts, who as department head was responsible for reference-checking Baldwin’s appl ication, noted that Baldwin’s name did not appear on the physical education grant proposal that her mate rials stated she had co-authored. Roberts contacted the listed author, Carol Propis, who stated that Baldwin’s contribution to the proposal was minimal and did not rise to the level of co-authorship. Roberts passed this information along to Dean Mark Severson, who was to conduct the next review of Baldwin’s materials. Severson contacted Propis, met with Baldwin, re viewed materials regard ing the grant proposal that Baldwin provided, and spoke with indivi duals suggested by her in connection with the proposal. He thereafter recommended against tenure, citing Baldwin’s “modest” publication record and the apparent “exaggera t[ion] [of] her contribution to” the grant proposal. J.A. 881. Next, Provost Dennis Ponton reviewed Baldwi n’s materials in late November 2011 and recommended that tenure be denied. In late December, President Aaron Podolefsky performed the final review and denied Baldwin’s applica tion. Her employment terminated in January
2013. Baldwin filed suit in district court. She cl aimed that SUNY-Buffalo had violated Title IX by denying her tenure in retaliation for reporti ng the student complaints about inappropriate remarks allegedly made by Roberts during class. 2 The Defendant-Appellee moved for summary judgment, and the district court granted the motion. The court, assuming arguendo that Baldwin had established a prima facie case of retaliation, concluded, in essence, that

2 Baldwin had earlier filed a claim with the New York State Division of Human Rights, but the Division found no probable cause to conclude that her tenure denial was th e product of unlawful retaliation. Baldwin also brought claims in district court under Title VII of the Civil Rights Act of 1964, as amended , 42 U.S.C. § 2000e et seq. , but the district court dismissed them, and she limits th is Court’s review to her Title IX claim.5 SUNY-Buffalo had articulated le gitimate, non-retaliatory reasons for denying her tenure and that Baldwin failed to raise a genuine issue of material fact as to its justif ication. Baldwin filed a motion for reconsideration. The court denied the motion.
II. Discussion Title IX prohibits retaliation against a person because that person has complained of sex discrimination. Jackson v. Birmingham Bd. of Educ. , 544 U.S. 167, 173 (2005). “A plaintiff claiming retaliation under Title IX must first establish a prima facie case by showing: (1) protected activity by the plaintiff; (2) know ledge by the defendant of the pr otected activity; (3) adverse school-related action; a nd (4) a causal connection between th e protected activit y and the adverse action.” Papelino v. Albany Coll. of Pharm. of Union Univ. , 633 F.3d 81, 91-92 (2d Cir. 2011). “Once a plaintiff establishes a prima facie case, the burden shifts to th e defendant to articulate a legitimate, nondiscriminatory reason for its actions.” Id. at 92 (citing McDonnell Douglas Corp.
v. Green , 411 U.S. 792, 802 (1973)). “After the defendant has done so, the burden shifts back to the plaintiff to demonstrate that the articulated reasons are pretextual.” Id. The desire to retaliate must be a “but-for cause of th e challenged employment action.” Burrage v. United States , 134 S. Ct. 881, 890 (2014). We review a district court’s gr ant of summary judgment in a Title IX case de novo, “construing the evid ence in the light most favorab le to the non-moving party and drawing all reasonable infe rences in its favor.” Allianz Ins. Co. v. Lerner , 416 F.3d 109, 113 (2d Cir. 2005). On appeal, Baldwin argues that she adduced sufficient evidence such that a reasonable jury could conclude that Roberts recommende d against tenure because Baldwin reported his students’ complaints. First, Baldwin argues that there is temporal proximity between when she reported the complaints in March, April, and June 2011 and Roberts’s negative review in6 September 2011. Even close temporal proximity, how ever, while sometimes sufficient to show a causal connection for the purposes of making out a prima facie case, is insufficien t, standing alone, “‘to satisfy [plaintiff’s] burden to bri ng forward some evidence of pretext.’” Ya-Chen Chen v. City Univ. of N.Y. , 805 F.3d 59, 72 (2d Cir. 2015) (quoting El Sayed v. Hilton Hotels Corp. , 627 F.3d 931, 933 (2d Cir. 2010) (per curiam)). Ba ldwin urges that Robe rts’s view of her scholarship record changed from favorable to unfavorable after sh e raised his students’ concerns, pointing to the October 2010 lette r from Roberts in which he supported a one-year renewal of Baldwin’s appointment in the health department. In that letter, however, Roberts also expressed concern that “to date no substantial publications are in print or in press,” and explicitly warned that “[t]his could jeopardize a favorable review for continuing appointm ent next year.” J.A. 257-58. Contrary to Baldwin’s claim, Roberts’s “consistent perspectiv e” on Baldwin’s publication record undermines the reasonableness of any inferen ce that her complaints caused his negative recommendation. Ya-Chen Chen , 805 F.3d at 72. Baldwin also fails to raise a genuine issue of material fact whethe r she would have been given tenure but for Roberts’s negative reco mmendation. Severson independently reviewed Baldwin’s materials and provide d an additional reason why he recommended against tenure: the “discrepancy” about Baldwin’s ro le in the grant proposal. J.A. 881. Baldwin speculates that Roberts’s recommendation “tainted” Severson’s, but speculation is in sufficient to raise a genuine issue of material fact. See Kerzer v. Kingly Mfg. , 156 F.3d 396, 400 (2d Cir. 1998). The record is undisputed that Seve rson conducted his own independent investigation: he spoke with Propis, reviewed material submitted by Baldwi n, and conducted interviews of individuals Baldwin promised would corroborat e her account of her role in the grant application process7 before concluding that Baldwi n “appear[ed] to have exa ggerated her c ontribution.”
J.A. 880-81. Baldwin also argues that her record of publis hed scholarship was adequate. She claims that the college never provided her with a clear requirement for published scholarship, and if it did, she met that requirement. This Court has repeat edly stated that colleges retain the right to set and apply the criteria for promotion to tenured professor. Bickerstaff v. Vassar Coll. , 196 F.3d 435, 455 (2d Cir. 1999), as amended on denial of reh’g (Dec. 22, 1999); accord Weinstock v. Columbia Univ. , 224 F.3d 33, 47 (2d Cir. 2000). He re, “numerous promotional review materials in the record support [SUNY-Buffalo’s ] position” that published scholarship in peer-reviewed national journals was an important criterion for tenure. Vassar Coll. , 196 F.3d at 455. Baldwin’s disagreement with how SUNY-Buffalo applied its tenure criteria is insufficient evidence of pretext. Finally, Baldwin relies on an e-mail fr om a SUNY-Buffalo Human Resources representative, Susan Earshen, that Baldwin received after P onton notified Human Resources about Baldwin’s retaliation complaint. The e- mail states: “The College must continue your ongoing review process for continui ng appointment and promotion in order to meet contractual notification deadlines. However, if you file a discrimination complaint through our internal complaint process in the Office of Equity and Dive rsity, the outcome of the investigation into your complaint may impact on the ultimate decision re garding your appointment.” J.A. 869. Baldwin argues that this language is an expl icit threat that if she filed an internal complaint, she would be denied tenure. We disagr ee. The e-mail links the outcome —not the filing—of Baldwin’s complaint to the tenure decision. And, as the district court st ated, the “full context makes plain” that this sentence was merely an explanation of how the timelines for a complaint and Baldwin’s8 tenure application would interact. Baldwin v. New York , 13-CV-485-HBS, 2015 WL 6696505, at *2 (W.D.N.Y. Nov. 2, 2015). Specifically, SUNY- Buffalo could not halt Baldwin’s tenure review because of contractual d eadlines, but a finding of retaliation might a ffect SUNY-Buffalo’s ultimate decision on Baldwin’s application for tenure. Accordingly, the Earshen e-mail does not evidence retaliation and does not al ter the conclusion, here, that the district c ourt properly granted summary judgment to the Defendant-Appellee.
* * * We have considered Baldwin’s remaining arguments and find th em to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk