20-2803

Kinard v. Crew

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 TO 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 29th day of October, two thousand twenty-one.

PRESENT:

JOHN M. WALKER, JR.,

ROBERT D. SACK,

SUSAN L. CARNEY,

Circuit Judges.

_________________________________________

SYLVIA GAIL KINARD,

Plaintiff-Appellant,

v. No. 20-2803

DR. RUDOLPH L. CREW, CITY UNIVERSITY 

OF NEW YORK, MEDGAR EVERS COLLEGE,

Defendants-Appellees.

_________________________________________

FOR APPELLANT: RICHARD WASHINGTON, Attorney at Law, 

New York, NY.

FOR APPELLEES: PHILIP J. LEVITZ, Assistant Solicitor 

General (Barbara D. Underwood, Solicitor 

General, Steven C. Wu, Deputy Solicitor 
 

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General, on the brief), for Letitia James, 

Attorney General, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District 

of New York (Cogan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on July 27, 2020, is 

AFFIRMED.

Sylvia Kinard served as the chief diversity officer and Title IX coordinator at Medgar 

Evers College (“MEC”) from approximately 2009 until June 2018, when her annual contract 

was not renewed. In February 2019, Kinard filed this lawsuit against MEC, MEC President 

Rudolph Crew (her former supervisor), and the City University of New York (“CUNY”) (of 

which MEC is part). Kinard alleges that the decision not to renew her employment contract 

in 2018 was made in retaliation for a protected activity and therefore violated Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and New York State Human Rights Law

(“NYSHRL”), N.Y. Exec. Law § 296.1 The district court granted defendants’ motion for 

summary judgment, concluding that Kinard’s activity was protected by Title VII but that the 

record conclusively established that defendants had decided not to renew her appointment 

before she engaged in that activity. Kinard appeals from the district court’s grant of

summary judgment for defendants. 

On de novo review, we affirm the judgment of the district court, concluding that no 

reasonable jury could find that Kinard’s asserted protected activity—her referral of English 

Department Chair Brenda Greene’s and Provost Augustine Okereke’s cross-complaints to 

the CUNY Central Office—was the but-for cause of defendants’ decision not to renew her 

appointment. We assume the parties’ familiarity with the underlying facts, procedural history, 

1 Our analysis does not address the NYSHRL claim separately, because we treat employment-discrimination

claims brought under the NYSHRL identically to claims under Title VII. Cooper v. N.Y. State Dep’t of Lab., 819 

F.3d 678, 680 n.3 (2d Cir. 2016) (per curiam).
 

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and arguments on appeal, to which we refer only as necessary to explain our decision to

affirm.

To survive a motion for summary judgment, a plaintiff bringing a Title VII retaliation

claim must first show that she engaged in protected activity, that the employer was aware of 

the protected activity, and that the protected activity was the cause of an adverse 

employment action—here, Crew’s decision not to reappoint Kinard. See Lenzi v. Systemax, 

Inc., 944 F.3d 97, 112 (2d Cir. 2019). To demonstrate causation, the plaintiff must show that 

retaliation was a but-for cause of an adverse employment action—not merely a “substantial” 

or “motivating” factor. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 348, 360 (2013). 

An adverse employment action cannot serve as the basis for a retaliation claim if the action 

was set in motion before the plaintiff engaged in the protected activity. See Slattery v. Swiss 

Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).

Kinard argues that the district court erred in awarding summary judgment because a 

genuine issue of fact remains as to whether her April 2018 referral of the Greene-Okereke 

matter to the CUNY Central Office was the cause of her termination. She submits that, in 

determining that the decision was made before the April referral, the district court relied 

“solely” on an early February 2018 email exchange between MEC Human Resources 

Executive Director Tanya Isaacs and CUNY counsel Katherine Raymond, and that this 

exchange is “equivocal,” demonstrating that no definitive decision as to her renewal or 

nonrenewal had been made before April. Appellant’s Br. at 24. 

The email exchange that Kinard cites, which took place under the correspondents’ 

subject line “Sylvia Kinard’s Agreement,” proceeded as follows:

Isaacs (02/06/18): We will be moving forward in non-reappointing 

unless you have more concerns. She is indeed excluded.

Isaacs (02/09/18): Hi Kathy, I just want to make sure you didn’t 

see anything in this agreement which would preclude us from 

removing Sylvia. Thanks, Tanya

Raymond (02/09/18): Hi, Tanya, there is nothing in that agreement 

that gives her any right to permanent employment. The only right in 

there is to be appointed for 2011-2012. She got a one-year 
 

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appointment letter, so she is clearly on yearly appointments and can 

be non-reappointed. As an excluded employee, she would not have 

any union rights.

Isaacs (02/09/18): Thank you and have a great weekend!!! Tanya

Raymond: (02/09/18): You are welcome, you too. Is this really 

maybe going to happen?

Isaacs (02/09/18): Yes. We will probably move her sooner than 

later and assign her somewhere else until her appointment runs out 

if so. I can expect there will be a fight on her end. Oy

J.A. 249–51.

We are not persuaded that Isaacs’s statements are so equivocal as to create a jury 

issue in light of the substantial evidence put forth by defendants that Crew, who was not 

part of the email exchange, had decided by February 2018, at the latest, that he would not

reappoint Kinard. On the contrary, the above email exchange demonstrates the MEC 

administrators’ specific intention not to renew Kinard’s contract. Kinard submits that the 

phrase “if so” in Isaacs’s final email reflects uncertainty over whether CUNY would 

terminate her employment, but that brief phrase—itself ambiguous in context—does not 

outweigh Isaacs’s other, unequivocal statements in the email exchange: for example, she 

wrote that they “will be moving forward in non-reappointing [Kinard],” absent any 

contractual barriers. J.A. 250 (emphasis added). And when Raymond confirmed to Isaacs

that she saw no such legal barriers and asked for confirmation of the intention to “nonreappoint[]” Kinard, Isaacs answered plainly, “Yes.” J.A. 249. 

Even if Isaacs’s February 2018 emails could be characterized as ambiguous, 

defendants adduced ample evidence that they experienced serious dissatisfaction with 

Kinard’s performance before April 2018, providing sufficient support for the view that her 

April 2018 action was not the but-for cause of her termination. In a sworn declaration, Crew 

recounted that he decided as early as October 2013 to change the structure of Kinard’s 

supervision, arranging for her to report to MEC’s executive counsel as well as to Crew. He 

did so, he averred, because he felt that Kinard required more supervision than she received 

when she reported only to him. Crew stated further that he had increasing concerns with 

Kinard’s performance after October 2013. These grew from her continually late timesheet 
 

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submissions, her lack of day-to-day accessibility, her deficient meeting attendance, and the 

poor judgment she exercised in evaluating allegations of sexual harassment made against an 

athletics coach. Isaacs confirmed Crew’s account, averring that Crew “gradually lost faith” in 

Kinard’s job performance. J.A. 433. Similarly, Crew’s chief of staff Lakisha Murray explained 

that Crew “frequently expressed . . . frustration that [Kinard’s investigative] reports were not 

more thorough.” Id. at 439. 

Written memoranda from as early as January 2017 also substantiate Crew’s frustration 

with Kinard’s repeated failure to submit her timesheets on time and certain other behavior. 

See, e.g., J.A. 223 (Crew memo to Kinard dated January 18, 2017, noting that Kinard was 

“consistently submitting timesheets late,” despite previous discussions about untimely 

submissions, and asking that she submit her timesheets and applications for leave “in a 

timely manner”); J.A. 240 (Crew memo to Kinard dated February 6, 2018, stating that 

Kinard’s timesheets were a “continuing concern,” and she “seemingly do[es] not heed 

counsel or correct behavior that is dysfunctional for the organization”). In a February 2018 

memorandum expressing such concerns, Crew warned Kinard, “If this is not a job you 

want[,] as I pointed out on February 2, then your behavior will remain the same.” J.A. 240. 

Kinard dismisses this evidence as “pretextual,” Appellant’s Br. at 26, but that 

characterization is unconvincing considering that this evidence, which largely corroborates 

defendants’ declarations, reflected serious, long-running concerns by her employer that first 

arose and were expressed well before she engaged in the asserted protected activity.

Attempting to counter the implications of this evidence, Kinard emphasizes the fact 

that the Isaacs-Raymond email exchange took place two and one-half months before she 

was notified of the nonrenewal of her appointment, suggesting that defendants’ 

contemplation of terminating her in February 2018 was unconnected to her ultimate 

termination. But the timing of the notification of nonrenewal does not in any way 

undermine the evidence that defendants decided to terminate her employment long before 

she engaged in the asserted protected activity. The Supreme Court has explained that an 

employer’s decision to “proceed[] along lines previously contemplated, though not yet 

definitively determined, is no evidence whatever of causality,” even if final implementation 
 

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of the previously contemplated adverse employment action takes place after the alleged 

protected activity. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001). Moreover, the 

email exchange is entirely consistent with defendants’ narrative of long-brewing 

dissatisfaction. Isaacs suggests in her February 2018 email exchange with Raymond that 

defendants intended to allow Kinard to continue working only “until her appointment r[an] 

out.” J.A. 249. In sworn declarations, Crew, Issacs, and Murray all state that Crew decided as

early as January 2018 not to renew Kinard’s employment at the end of the term. Crew and 

Isaacs both attested further that MEC customarily delays informing employees of contract 

nonrenewal until shortly before CUNY’s May 1 notice deadline, to minimize the time spent 

dealing with disappointed and potentially unmotivated employees. Thus, the time that lapsed 

between Crew’s decision not to reappoint Kinard and Kinard’s notification of the decision

does not weigh in Kinard’s favor or create a genuine issue of material fact.

In light of the overwhelming evidence showing that defendants decided not to renew 

Kinard’s term of employment “well before the plaintiff had ever engaged in [the] protected 

activity,” Slattery, 248 F.3d at 95, we agree with the district court that no reasonable jury 

could find that Kinard’s April 2018 referral of the Greene-Okereke matter was the but-for 

cause of defendants’ failure to renew her appointment.

* * *

We have considered Kinard’s remaining arguments and find in them no basis for 

reversal. The judgment of the district court is AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court