14-915-cv

Zhou v. State Univ. of N.Y. Inst. of Tech.

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 5th 4 day of February, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 GUIDO CALABRESI,

8 RICHARD C. WESLEY,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 XU-SHEN ZHOU, a/k/a JASON ZHOU, 

13 Plaintiff-Appellee,

14

15 -v.- 14-915-cv

16

17 STATE UNIVERSITY OF NEW YORK INSTITUTE

18 OF TECHNOLOGY, DR. LISA BERARDINO,

19 PERSONALLY AND IN HER OFFICIAL

20 CAPACITY, DR. STEPHEN HAVLOVIC,

21 PERSONALLY AND HIS OFFICIAL CAPACITY,

22 DR. WILLIAM LANGDON, PERSONALLY AND IN

23 HIS OFFICIAL CAPACITY, 

24 Defendants-Appellants.

25 - - - - - - - - - - - - - - - - - - - -X

26

27 FOR APPELLANTS: LAURA ETLINGER, Assistant

28 Solicitor General (with Barbara

29 D. Underwood, Solicitor General

30 and Anisha Dasgupta, Deputy
1 Solicitor General, on the

2 brief), for Eric T.

3 Schneiderman, Attorney General

4 of the State of New York,

5 Albany, New York.

6

7 FOR APPELLEE: MIMI C. SATTER, Satter &

8 Andrews, LLP, Syracuse, New

9 York.

10

11 Appeal from a judgment of the United States District

12 Court for the Northern District of New York (Suddaby, J.).

13

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15 AND DECREED that the judgment of the district court be

16 VACATED and REMANDED. 

17

18 Defendants-Appellants The State University of New York

19 Institute of Technology, and certain of its officials

20 (collectively, “SUNY IT”), appeal from the judgment of the

21 United States District Court for the Northern District of

22 New York (Suddaby, J.), entered after a jury trial, awarding

23 Zhou damages for retaliation. We assume the parties’

24 familiarity with the underlying facts, the procedural

25 history, and the issues presented for review. 

26

27 Zhou, a former faculty member who was not reappointed

28 by SUNY IT, sued alleging discrimination, a hostile work

29 environment, and retaliation. Initially, the district court

30 granted summary judgment in favor of SUNY IT. The court

31 concluded that, even assuming Zhou established a prima facie

32 case of discrimination and retaliation, SUNY IT “adduced

33 admissible record evidence establishing that [Zhou] was not

34 renewed because of his [Individualized Development and

35 Educational Assessment] scores, student complaints, student

36 evaluations, and the recommendations of the Peer Review

37 Committee, Dean Havlovic, and Vice President Mullick.” Zhou

38 v. State Univ. of N.Y. Inst. of. Tech., 2011 WL 4344025, at

39 *13 (N.D.N.Y. Sept. 14, 2011). The court further found that

40 Zhou could not demonstrate that the proffered legitimate,

41 non-discriminatory reasons for non-renewal were pretextual. 

42

43 In the earlier appeal, Zhou contested only the grant of

44 summary judgment with respect to his retaliation claims. 

45 Emphasizing that “[w]e [were] not suggest[ing] that [the

46 evidence] would compel a pretext finding in Zhou’s favor,”

47 this Court reinstated his claims because, “viewed in the

2
1 light most favorable to Zhou,” the facts presented a triable

2 issue. Zhou v. State Univ. of N.Y. Inst. of Tech., 499 F.

3 App’x 105, 107, 109-10 & n.1 (2d Cir. 2012). At the time,

4 this Court relied on then-current precedent establishing

5 that, to defeat summary judgment, a plaintiff need only show

6 that a “retaliatory motive played a part in the adverse

7 employment actions even if it was not the sole cause.” See

8 id. at 108 (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d

9 Cir. 2010)). 

10

11 On remand, the district court duly instructed the jury

12 that Zhou was required to prove that his discrimination

13 complaint “played a substantial or motivating factor in the

14 decision not to renew his employment contract.” This

15 instruction, consistent with precedent, provoked no

16 objection from SUNY IT. The jury found in favor of Zhou and

17 awarded damages.

18

19 While SUNY IT’s post-judgment motion for judgment as a

20 matter of law was pending, the Supreme Court instructed that

21 “Title VII retaliation claims must be proved according to

22 traditional principles of but-for causation, [which] . . .

23 requires proof that the unlawful retaliation would not have

24 occurred in the absence of the alleged wrongful action or

25 actions of the employer.” Univ. of Texas Sw. Med. Ctr. v.

26 Nassar, 133 S. Ct. 2517, 2533 (2013). SUNY IT received the

27 opportunity to file a supplemental memorandum of law on

28 Nassar, and argued that judgment as a matter of law–-or, in

29 the alternative, a new trial–-was warranted because “given

30 the abundance of evidence presented at trial of [Zhou’s]

31 poor teaching performance, [Zhou] ‘has not, and cannot,

32 prove that he would not have been renewed by SUNY IT in the

33 absence of the allegedly wrongful action of [SUNY IT].’” 

34 Zhou v. State Univ. of N.Y. Inst. of Tech., 4 F. Supp. 3d

35 404, 419 (N.D.N.Y. 2014) (quoting Defs.’ Supp. Mem. of Law,

36 Dkt. No. 140, at 3). The court reasoned: “[B]ased upon the

37 evidence adduced at trial, a reasonable jury could have

38 reached the conclusion that Defendants would not have

39 decided not to renew Plaintiff’s contract but for their

40 retaliation against Plaintiff for his complaints . . . .” 

41 Id.

42

43 We review the district court’s jury instructions for

44 plain error, but we must review them “in light of the law as

45 it stands at the time of appeal.” Rasanen v. Doe, 723 F.3d

46 325, 338 (2d Cir. 2013); see also Henderson v. United

47 States, 133 S. Ct. 1121, 1127 (2013) (observing that it is

3
1 “enough that an error be plain at the time of appellate

2 consideration for that error to fall within [the] category

3 of plain error” (internal quotation marks omitted)). In

4 light of Nassar, which is the “current law, we find that the

5 instruction given to the jury in this case was plain error,”

6 Rasanen, 723 F.3d at 338, and vacatur and remand is

7 warranted. 

8

9 “An error that deprive[s] the jury of adequate legal

10 guidance to reach a rational decision on [the] case’s

11 fundamental issue constitutes plain error.” Id. at 334-35

12 (internal quotation marks omitted). Here, the instructions

13 given pursuant to our mandate “fatally subverted the trial’s

14 integrity”; and while the timing of the Nassar opinion

15 “explains the district court’s [instructions, it] does not

16 alter the fact that [the instructions given] constitute[]

17 plain error.” Id. at 335 & n.6. Our review of the record

18 reveals that the erroneous jury instruction may have been

19 outcome determinative. Cf. Cassotto v. Donahoe, 2015 WL

20 149032, at *1 (2d Cir. Jan. 14, 2015) (rejecting challenge

21 to grant of a new trial where “substantial or motivating

22 factor” standard was employed in the first trial and

23 plaintiff received a favorable verdict and the “but-for”

24 causation test was applied in the second trial, resulting in

25 a verdict for defendant).

26

27 For the foregoing reasons, we hereby VACATE and REMAND

28 the judgment of the district court for retrial or other

29 proceedings consistent with this order.

30

31 FOR THE COURT:

32 CATHERINE O’HAGAN WOLFE, CLERK

33

4