14-915-cv Zhou v. State Univ. of N.Y. Inst. of Tech.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
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**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 5 th** **day of February, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **RICHARD C. WESLEY,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **XU-SHEN ZHOU, a/k/a JASON ZHOU,** 12 **Plaintiff-Appellee ,**  13 14 **-v.- 14-915-cv** 15 16 **STATE UNIVERSITY OF NEW YORK INSTITUTE** 17 **OF TECHNOLOGY, DR. LISA BERARDINO,** 18 **PERSONALLY AND IN HER OFFICIAL** 19 **CAPACITY, DR. STEPHEN HAVLOVIC,** 20 **PERSONALLY AND HIS OFFICIAL CAPACITY,** 21 **DR. WILLIAM LANGDON, PERSONALLY AND IN** 22 **HIS OFFICIAL CAPACITY,** 23 **Defendants-Appellants**

**.** 24
- - - - - - - - - - - - - - - - - - - -X 25 26 **FOR APPELLANTS:** LAURA ETLINGER, Assistant 27 Solicitor General (withBarbara 28 D. Underwood, Solicitor General 29 and Anisha Dasgupta, Deputy 30Solicitor General, on the 1 brief ), for Eric T. 2 Schneiderman, Attorney General 3 of the State of New York, 4 Albany, New York. 5 6 **FOR APPELLEE:** MIMI C. SATTER, Satter & 7 Andrews, LLP, Syracuse, New 8 York. 9 10 Appeal from a judgment of the United States District 11 Court for the Northern District of New York (Suddaby, J. ). 12 13 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 14 **AND DECREED**that the judgment of the district court be 15 **VACATED and REMANDED**

. 16 17 Defendants-Appellants The State University of New York 18 Institute of Technology, and certain of its officials 19 (collectively, “SUNY IT”), appeal from the judgment of the 20 United States District Court for the Northern District of 21 New York (Suddaby, J. ), entered after a jury trial, awarding 22 Zhou damages for retaliation. We assume the parties’ 23 familiarity with the underlying facts, the procedural 24 history, and the issues presented for review. 25 26 Zhou, a former faculty member who was not reappointed 27 by SUNY IT, sued alleging discrimination, a hostile work 28 environment, and retaliation. Initially, the district court 29 granted summary judgment in favor of SUNY IT. The court 30 concluded that, even assuming Zhou established a prima facie 31 case of discrimination and retaliation, SUNY IT “adduced 32 admissible record evidence establishing that [Zhou] was not 33 renewed because of his [Individualized Development and 34 Educational Assessment] scores, student complaints, student 35 evaluations, and the recommendations of the Peer Review 36 Committee, Dean Havlovic, and Vice President Mullick.” Zhou 37 v. State Univ. of N.Y. Inst. of. Tech. , 2011 WL 4344025, at 38 *13 (N.D.N.Y. Sept. 14, 2011). The court further found that 39 Zhou could not demonstrate that the proffered legitimate, 40 non-discriminatory reasons for non-renewal were pretextual. 41 42 In the earlier appeal, Zhou contested only the grant of 43 summary judgment with respect to his retaliation claims. 44 Emphasizing that “[w]e [were] not suggest[ing] that [the 45 evidence] would compel a pretext finding in Zhou’s favor,” 46 this Court reinstated his claims because, “viewed in the 47

2light most favorable to Zhou,” the facts presented a triable 1 issue. Zhou v. State Univ. of N.Y. Inst. of Tech. , 499 F. 2 App’x 105, 107, 109-10 & n.1 (2d Cir. 2012). At the time, 3 this Court relied on then-current precedent establishing 4 that, to defeat summary judgment, a plaintiff need only show 5 that a “retaliatory motive played a part in the adverse 6 employment actions even if it was not the sole cause.” See 7 id. at 108 (quoting Hicks v. Baines , 593 F.3d 159, 164 (2d 8 Cir. 2010)). 9 10 On remand, the district court duly instructed the jury 11 that Zhou was required to prove that his discrimination 12 complaint “played a substantial or motivating factor in the 13 decision not to renew his employment contract.” This 14 instruction, consistent with precedent, provoked no 15 objection from SUNY IT. The jury found in favor of Zhou and 16 awarded damages. 17 18 While SUNY IT’s post-judgment motion for judgment as a 19 matter of law was pending, the Supreme Court instructed that 20 “Title VII retaliation claims must be proved according to 21 traditional principles of but-for causation, [which] . . . 22 requires proof that the unlawful retaliation would not have 23 occurred in the absence of the alleged wrongful action or 24 actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. 25 Nassar , 133 S. Ct. 2517, 2533 (2013). SUNY IT received the 26 opportunity to file a supplemental memorandum of law on 27 Nassar , and argued that judgment as a matter of law–-or, in 28 the alternative, a new trial–-was warranted because “given 29 the abundance of evidence presented at trial of [Zhou’s] 30 poor teaching performance, [Zhou] ‘has not, and cannot, 31 prove that he would not have been renewed by SUNY IT in the 32 absence of the allegedly wrongful action of [SUNY IT].’” 33 Zhou v. State Univ. of N.Y. Inst. of Tech. , 4 F. Supp. 3d 34 404, 419 (N.D.N.Y. 2014) (quoting Defs.’ Supp. Mem. of Law, 35 Dkt. No. 140, at 3). The court reasoned: “[B]ased upon the 36 evidence adduced at trial, a reasonable jury could have 37 reached the conclusion that Defendants would not have 38 decided not to renew Plaintiff’s contract but for their 39 retaliation against Plaintiff for his complaints . . . .” 40 Id. 41 42 We review the district court’s jury instructions for 43 plain error, but we must review them “in light of the law as 44 it stands at the time of appeal.” Rasanen v. Doe , 723 F.3d 45 325, 338 (2d Cir. 2013); see alsoHenderson v. United 46 States , 133 S. Ct. 1121, 1127 (2013) (observing that it is 47

3“enough that an error be plain at the time of appellate 1 consideration for that error to fall within [the] category 2 of plain error” (internal quotation marks omitted)). In 3 light of Nassar , which is the “current law, we find that the 4 instruction given to the jury in this case was plain error,” 5 Rasanen , 723 F.3d at 338, and vacatur and remand is 6 warranted. 7 8 “An error that deprive[s] the jury of adequate legal 9 guidance to reach a rational decision on [the] case’s 10 fundamental issue constitutes plain error.” Id. at 334-35 11 (internal quotation marks omitted). Here, the instructions 12 given pursuant to our mandate “fatally subverted the trial’s 13 integrity”; and while the timing of the Nassaropinion 14 “explains the district court’s [instructions, it] does not 15 alter the fact that [the instructions given] constitute[] 16 plain error.” Id. at 335 & n.6. Our review of the record 17 reveals that the erroneous jury instruction may have been 18 outcome determinative. Cf. Cassotto v. Donahoe , 2015 WL 19 149032, at *1 (2d Cir. Jan. 14, 2015) (rejecting challenge 20 to grant of a new trial where “substantial or motivating 21 factor” standard was employed in the first trial and 22 plaintiff received a favorable verdict and the “but-for” 23 causation test was applied in the second trial, resulting in 24 a verdict for defendant). 25 26 For the foregoing reasons, we hereby **VACATE and REMAND** 27 the judgment of the district court for retrial or other 28 proceedings consistent with this order. 29 30 FOR THE COURT: 31 CATHERINE O’HAGAN WOLFE, CLERK 32 33

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