Brown v. CUNY

25-694-cv

Brown v. CUNY

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.

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 18th day of February, two thousand twenty-six.

PRESENT:

JOSEPH F. BIANCO,

MYRNA PÉREZ,

MARIA ARAÚJO KAHN,

Circuit Judges.

_____________________________________

KIM M. BROWN,

Plaintiff-Appellant,

v. 25-694-cv

CITY UNIVERSITY OF NEW YORK,

Defendant-Appellee,

RUDOLPH CREW, TANYA ISAACS,

HILLARY KLEIN, MEDGAR EVERS COLLEGE,

OF THE CITY UNIVERSITY OF NEW YORK,

Defendants.

_____________________________________

FOR PLAINTIFF-APPELLANT: STEWART LEE KARLIN, Stewart Lee Karlin

Law Group, PC, New York, New York.

FOR DEFENDANT-APPELLEE: ANTHONY R. RADUAZO, (Barbara D.

Underwood and Mark S. Grube, on the brief),

for Letitia James, Attorney General of the State

of New York, New York, New York.

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

New York (Pamela K. Chen, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court, entered on February 28, 2025, is

AFFIRMED.

Plaintiff-Appellant Kim M. Brown appeals from the district court’s judgment granting

summary judgment in favor of Defendant-Appellee City University of New York (“CUNY”),

pursuant to Federal Rule of Civil Procedure 56. Specifically, Brown challenges the grant of

summary judgment on her claim of retaliation for reporting race and gender-based

discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq. (“Title VII”). 1 See Brown v. CUNY, No. 21-cv-0854 (PKC), 2025 WL 638353, at *9–13

(E.D.N.Y. Feb. 27, 2025). We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal, to which we refer only as necessary to explain our

decision to affirm.

1

Brown does not challenge the district court’s dismissal of any of the other claims asserted in her

amended complaint, as her appellate brief solely discusses the retaliation claim. We therefore deem

those other claims abandoned. See Jeffery v. City of New York, 113 F.4th 176, 187–88 (2d Cir. 2024)

(citing Jackler v. Byrne, 658 F.3d 225, 233 (2d Cir. 2011)).

2

BACKGROUND

Brown, a Black woman, became a tenure-track professor at CUNY’s Medgar Evers

College (the “College”) in 2008, and started her doctoral degree in education at Columbia

University (“Columbia”) around that same time. She first applied for tenure at CUNY in 2014

and, after being denied, commenced a grievance process that culminated in a settlement

agreement between Brown and CUNY in January 2017 (the “Settlement Agreement”).

Pursuant to the Settlement Agreement, Brown would remain in her faculty position for an

additional two-year period while working toward the “minimum requirements” for her to be

reappointed or awarded tenure. App’x at 71. Those minimum requirements included

completing her Columbia doctoral degree program, publishing two scholarly works, and

submitting a progress report on those requirements by September 30, 2018. The Settlement

Agreement provided that “[f]ailure of [Brown] to satisfy in any respect any of the minimum

requirements . . . shall be sufficient cause for the College not to recommend [Brown] for

reappointment by the Board of Trustees.” Id.

Brown alleges that, for the three subsequent semesters after she was reinstated, her

CUNY teaching schedule conflicted with aspects of her Columbia doctoral program. About

one week after signing the Settlement Agreement, Brown received her spring 2017 teaching

schedule on or about January 26, 2017, which Brown asserts conflicted with a Thursday evening

colloquium she was required to attend at Columbia. Brown reported her spring 2017 schedule

conflict to, inter alia, CUNY’s human resources director and the College Dean, Jo-Ann Rolle,

and was initially denied changes to her schedule. Id. at 903. Brown then responded to that

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denial by expressing her belief that her schedule constituted “disparate treatment.” Id. at 410.

Brown was subsequently relieved of her Thursday evening teaching obligation within one week

of reporting her conflict, before the first Thursday that the conflict would have materialized. Id.

at 413. One month later, in February 2017, Brown sent a memorandum to CUNY’s President

and Provost detailing alleged sex and race discrimination in an unrelated faculty hiring process.

Brown alleges the same conflict appeared again in her fall 2017 semester teaching

schedule. She reported the conflict to her department chair Professor Randy Robotham—who

Brown testified is responsible for her teaching schedule—and Dean Rolle, and noted in an email,

“[t]his is not to suggest that the department or anyone is specifically to blame.” Id. at 212, 429.

Brown finally alleges the same conflict in her spring 2018 semester schedule, which according

to her testimony she reported to Dean Rolle, with Brown telling Dean Rolle it was due to “all

the discrimination” Brown had faced. Id. at 217.

Brown did not complete her doctoral program and did not submit her progress report by

the Settlement Agreement’s deadline. Upon review of Brown’s second tenure application, the

CUNY President did not recommend her for reappointment or tenure in light of her “failure to

fulfill the required terms of [the Settlement Agreement],” noting that she “did not complete [her]

Ed.D degree” and “failed to submit a report” by September 30, 2018. Id. at 493–94. She was

subsequently terminated as a CUNY employee.

DISCUSSION

Brown claims that CUNY retaliated against her for her protected activities by deliberately

creating scheduling conflicts that led to her failure to fulfill the requirements of the Settlement

4

Agreement, which resulted in her denial of tenure and subsequent termination. Brown asserts

that the record sufficiently supports her claims such that the district court erred in granting

summary judgment to CUNY on her retaliation claim.

We review a district court’s grant of summary judgment de novo. Covington Specialty

Ins. Co. v. Indian Lookout Country Club, Inc., 62 F.4th 748, 752 (2d Cir. 2023) (per curiam).

Summary judgment is warranted when “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In considering

a summary judgment motion, a court is to construe the evidence in the light most favorable to

the nonmoving party, drawing all reasonable inferences in her favor. Bey v. City of New York,

999 F.3d 157, 164 (2d Cir. 2021).

We analyze Brown’s Title VII retaliation claim under the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jute v. Hamilton

Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). First, to establish a prima facie case of

retaliation, a plaintiff must demonstrate that “(1) she engaged in protected activity, (2) the

defendant was aware of that activity, (3) she was subjected to a retaliatory action, or a series of

retaliatory actions, that were materially adverse, and (4) there was a causal connection between

the protected activity and the materially adverse action or actions.” Carr v. N.Y.C. Transit

Auth., 76 F.4th 172, 180 (2d Cir. 2023). If the plaintiff makes out a prima facie case, the burden

shifts to the defendant to provide “a legitimate, non-retaliatory reason for the allegedly retaliatory

action.” Id. at 178. Once the defendant does so, “the presumption of retaliation dissipates,

and the plaintiff must prove that the desire to retaliate was the but-for cause of the challenged

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employment action.” Id. (internal quotation marks and citation omitted); see also Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).

The district court found that Brown failed to satisfy the fourth element of a prima facie

case of retaliation because, inter alia, the gaps in time between her complaints of discrimination

and the adverse actions were “too attenuated to raise an inference of causation on their own.”

Brown, 2025 WL 638353, at *12. Brown argues that the district court erred in concluding that

her evidence was insufficient to meet the minimal burden of establishing a prima facie case.

For example, with respect to temporal proximity, Brown asserts that “[she] complained in

February and May 2017, but due to the summer break, [CUNY’s] next opportunity to further

discriminate and retaliate against her was during the Fall semester of 2017.” Appellant’s Br. at

36–37. However, we need not address this issue because we conclude that, even assuming

arguendo that a prima facie case was established, no rational jury could find that CUNY’s

proffered reason for the denial of tenure and subsequent termination—namely, her failure to

comply with the terms of the Settlement Agreement—was a pretext for retaliation. 2

We have repeatedly held that temporal proximity alone cannot create an issue of fact on

pretext at the summary judgment stage, see Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254–

55 (2d Cir. 2014); El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010), abrogated

in part on other grounds by Nassar, 570 U.S. 338, and Brown has failed to provide any other

2

The district court did not reach the pretext stage of the McDonnell Douglas burden-shifting analysis,

but we may “affirm on any ground with support in the record.” Cox v. Onondaga Cnty. Sheriff’s Dep’t,

760 F.3d 139, 145 (2d Cir. 2014) (affirming dismissal of Title VII retaliation claim based on failure to

show pretext).

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evidence that is sufficient to support a rational finding by a jury that CUNY’s proffered reasons

for the adverse actions were a pretext for retaliation. Brown does not dispute that (1) the

Settlement Agreement governed her tenure application process, and (2) she did not complete her

doctoral program nor submit her progress report by the September 30, 2018 deadline, as required

by the Settlement Agreement. Even if Brown’s scheduling conflicts prevented her from

completing her program by the deadline, she provides no evidence to support a reasonable

inference that these conflicts were intentionally created by CUNY, let alone done with the

intention of retaliating against her for her protected activities. Indeed, the uncontroverted

evidence demonstrated that CUNY attempted on multiple occasions to accommodate her

purported scheduling conflicts with respect to her graduate studies. For example, with respect

to the spring 2017 semester, Brown did not inform CUNY of her Columbia class schedule until

after CUNY gave her the spring 2017 teaching schedule, which was one week after the Columbia

semester started. The record demonstrates that CUNY nevertheless fixed the conflict within

three business days—in time for the conflict not to have materialized—but Brown still did not

take the course. Similarly, as to the fall 2017 semester, Professor Robotham reassigned

Brown’s Thursday evening class to eliminate the conflict with the Columbia class. Although

Brown thanked him for assisting with the conflict, she still did not take any doctoral program

classes that semester.

We also note that there is a mismatch between who designed Brown’s schedule

(Professor Robotham) and who had knowledge of her protected activity. The record shows that

Brown’s complaints about discrimination in scheduling went to Dean Rolle and CUNY’s human

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resources department, and her February 2017 memorandum went to the CUNY President and

the Provost. In contrast, there is no evidence that Professor Robotham was aware of any of her

complaints of discrimination. See Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.

2000) (“The lack of knowledge on the part of particular individual agents is admissible as some

evidence of a lack of a causal connection, countering plaintiff’s circumstantial evidence of

[temporal] proximity . . . .”). Moreover, Brown testified that Professor Robotham was her

“biggest ally,” App’x at 210, and “wholeheartedly recommend[ed] her for tenure,” id. at 227.

Therefore, Brown has failed to create a triable issue of fact as to whether Professor Robotham,

or anyone else at CUNY, was utilizing her scheduling conflicts as part of a retaliatory effort to

prevent her from completing her required courses for the tenured position. 3 Similarly, none of

the other evidence to which Brown points raises a reasonable inference of retaliation. 4 For

example, although Brown makes conclusory allegations that she was treated less favorably than

other tenured faculty members, she fails to provide any evidence regarding the qualifications of

3

CUNY also points out that, “in direct conflict with the core allegations underpinning her retaliation

claim, Brown attested during [her bankruptcy proceeding] she had successfully ‘completed all

coursework’ necessary to obtain her doctoral degree, and CUNY had been ‘considerate and patient’ by

affording her additional time to do so.” Appellee’s Br. at 33–34 (citations omitted). However, we

need not consider these inconsistencies in determining that Brown has failed to proffer sufficient evidence

of retaliation to preclude summary judgment.

4

To the extent Brown argues that the district court erred in failing to consider her purported evidence

from prior to 2017, we disagree. As a threshold matter, Brown waived this argument by conceding in

the district court that the Settlement Agreement bars reliance on pre-2017 events. See United States v.

Mangano, 128 F.4th 442, 466 (2d Cir. 2025) (“[W]hen a party concedes a point before a lower court, it

generally ‘waive[s] . . . the issue’ and cannot thereafter raise an argument before this Court that is

contrary to the concession.” (citation omitted)). In any event, there is nothing from the pre-2017

timeframe that provides a reasonable inference that her complaints of discrimination somehow caused

the 2017 and 2018 scheduling conflicts and her denial of tenure.

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the purported comparators that would allow a rational finding that they were similarly situated

to her. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997); see also

McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (“[E]mployees must have a situation

sufficiently similar to plaintiff’s to support at least a minimal inference that the difference of

treatment may be attributable to discrimination.”).

In sum, even construing the evidence most favorably to Brown, no rational jury could

find that retaliation for her protected activities was the “but-for” cause of her scheduling

conflicts, or the denial of tenure for her failing to comply with the Settlement Agreement and

her subsequent termination. Summary judgment was therefore warranted on Brown’s Title VII

retaliation claim.

* * *

We have considered Brown’s remaining arguments and conclude that they are without

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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