Gong v. City University of New York

Background

Hongmian Gong was a tenured full professor in the Geography Department at Hunter College, which is within the City University of New York (CUNY). In 2017, she also served as the department’s graduate advisor and fellowship coordinator. In that coordinator role, she oversaw fellowships and scholarships awarded through the Advanced Institute for Transportation Education.

A graduate student, L.S., filed a formal complaint concerning Gong’s oversight of his graduate work and scholarship. The complaint alleged that Gong withheld his monthly stipend on some occasions because she was angry when he had difficulty resolving technical issues involving her project. Dean Angela Haddad investigated and issued a report recommending changes to the department’s administration of scholarship and fellowship funds. The report also recommended that Gong receive guidance about written agreements and clearly explaining the source and conditions of student funding.

Gong appealed the report, but the College-wide Appeals Committee upheld it. The committee stated that Gong and Dean Haddad agreed that payments to L.S. had been intentionally delayed, found no evidence that Gong had the right or responsibility to delay payment, questioned her judgment in the two positions, and suggested considering another faculty member for those roles.

On or about September 13, 2017, Gong filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). The parties disputed when CUNY learned of the charge. The Geography Department’s Personnel and Budget Committee met on September 27, 2017, and removed Gong as graduate advisor and fellowship coordinator. The opinion states that the undisputed evidence showed Gong was informed of the decision on October 2, 2017.

Gong later sued CUNY under Title VII of the Civil Rights Act of 1964, alleging discrimination, a hostile work environment, and retaliation. In an earlier ruling, the court dismissed the discrimination and hostile-work-environment claims and allowed part of the retaliation claim to continue. The surviving claim concerned whether CUNY removed Gong from the two positions in retaliation for filing the EEOC charge.

Legal standard

Summary judgment is a decision entered when the record shows no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment under the law. The court views disputed facts in favor of the party opposing the motion, here Gong.

Title VII retaliation claims use a burden-shifting framework. The employee first must make an initial showing of protected activity, the employer’s knowledge of that activity, an adverse employment action, and a connection between the activity and the action. If that showing is made, the employer must identify a legitimate, non-retaliatory reason for its action. The employee then must show that the stated reason was a pretext, or cover, and that retaliation was a but-for cause of the action. The opinion explains that but-for causation means the action would not have occurred without the retaliatory motive, although retaliation need not have been the only cause.

Court’s analysis

The court held that Gong met the low initial burden for a retaliation claim. CUNY did not dispute that filing the EEOC charge was protected activity or that removing Gong from the two positions was an adverse employment action. Viewing the facts in Gong’s favor, the court treated CUNY as having at least constructive notice of the charge by September 23, 2017. Because the committee removed Gong on September 27, the four-day timing was enough at this stage to support a possible causal connection.

The court nevertheless granted CUNY’s motion because Gong could not show that CUNY’s reasons were pretextual or that retaliation was a but-for cause of her removal. CUNY identified concerns that Gong had failed to distinguish between scholarship funds owed to L.S. and funds she provided for another purpose, and that she had improperly withheld institutional funds. The opinion states that Dean Haddad, the Appeals Committee, and Gong herself acknowledged that the withholding was inappropriate.

Gong argued that the Appeal Report was unreliable because it did not strictly follow CUNY procedures and was self-contradictory or unclear. The court concluded that, even viewing those issues in her favor, they would not allow a reasonable jury to find that she would not have been removed without her EEOC filing. Gong also argued that her intent to file the EEOC charge was the protected activity. The court declined to consider that theory because it was raised for the first time in opposition to summary judgment and was not part of the surviving claim described in the amended complaint. The court added that summary judgment would still be appropriate even if that theory were considered.

Disposition

Judge Lorna G. Schofield granted CUNY’s motion for summary judgment. The Clerk of Court was directed to close Docket Number 65 and close the case. The opinion’s filing header states March 25, 2020, while its concluding date line states March 25, 2019; the metadata header above uses the filed date supplied for this summary.