The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
QILONG MIN,
Plaintiff,
vs. 1:23-CV-1201
(MAD/ML)
STATE UNIVERSITY OF NEW YORK
AT ALBANY, CHRISTOPHER THORNCROFT,
and BRIAN SELCHICK,
Defendants.
____________________________________________
APPEARANCES: OF COUNSEL:
COBURN GREENBAUM BARRY COBURN, ESQ.
& EISENSTEIN, PLLC
1710 Rhode Island Avenue Northwest
Second Floor
Washington, D.C. 20036
Attorney for Plaintiff
OFFICE OF THE NEW YORK AIMEE COWAN, AAG
STATE ATTORNEY GENERAL
300 South State Street
Suite 300
Syracuse, New York 13202
Attorney for Defendants
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Qilong Min, Ph.D ("Plaintiff") commenced this action on September 25, 2023, alleging
discrimination, retaliation, and violation of his constitutional rights at his workplace, the State
University of New York at Albany ("SUNY Albany"). See Dkt. No. 1. Plaintiff filed an amended
complaint on December 12, 2023. See Dkt. No. 18. The amended complaint sets forth five
causes of action against SUNY Albany; Christopher Thorncroft, Ph.D., Plaintiff's supervisor; and
Brian Selchick, SUNY Albany's former Director of Employee Relations (collectively,
"Defendants"). See id. Plaintiff's five claims are: (1) race and national origin discrimination
under Title VII of the Civil Rights Act of 1964 ("Title VII"), asserted against SUNY Albany; (2)
Title VII retaliation, asserted against SUNY Albany; (3) race and national origin discrimination
under the New York State Human Rights Law ("HRL"), asserted against all Defendants; (4)
retaliation under the HRL, asserted against all Defendants; and (5) a Fourteenth Amendment
equal protection violation pursuant to 42 U.S.C. § 1983, asserted against Defendants Thorncroft
and Selchick in their personal capacities. See id. at ¶¶ 124-57.
On February 4, 2026, Defendants filed a motion for summary judgment on all claims. See
Dkt. No. 73. Plaintiff opposed the motion on April 13, 2026, see Dkt. No. 82, and Defendants
filed a reply on May 4, 2026, see Dkt. No. 89. For the following reasons, the motion is granted.
II. BACKGROUND
Although Plaintiff filed a counseled response to Defendants' statement of undisputed
material facts, the response does not comply with this Court's Local Rules because it lacks any
citations to the record for each fact that Plaintiff purports to dispute. See Dkt. No. 85; N.D.N.Y.
L.R. 56.1(b) ("Each denial shall set forth a specific citation to the record where the factual issue
arises"). Plaintiff's response also adds new commentary and factual assertions without citations to
the record. See Dkt. No. 85. The Local Rules "are 'essential tools' intended to relieve the district
court 'of the onerous task of "hunt[ing] through voluminous records without guidance from the
parties."'" Frantti v. New York, 414 F. Supp. 3d 257, 284 (N.D.N.Y. 2019) (quoting Carter v.
Broome Cnty., 394 F. Supp. 3d 228, 238 (N.D.N.Y. 2019)); see N.Y. State Teamsters Conf.
Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d Cir. 2005)). To that end, the
Local Rules clearly state that "[t]he Court may deem admitted any properly supported facts set
forth in the Statement of Material Facts that the opposing party does not specifically controvert."
N.D.N.Y. L.R. 56.1(b). "Conclusory denials unsupported by specific citations to the record are
insufficient[,]" and "the Court is not required to search the record for evidence that the parties fail
to point out in their Local Rule statements." Colton v. N.Y. Div. of State Police, No. 5:14-CV-
801, 2017 WL 5508911, *2 (N.D.N.Y. Feb. 8, 2017) (collecting cases). That is particularly true
when a party is represented by counsel. Cf. Loveall v. Walker, 807 F. Supp. 3d 148, 157
(N.D.N.Y. 2025) (discussing the scope of special solicitude afforded to pro se litigants who fail to
respond properly to a movant's statement of undisputed material facts).
Insofar as the factual assertions in Defendants' statement of undisputed material facts are
supported by the record, the Court deems them admitted and accepts them as true. See Davis v.
Cumberland Farms, Inc., No. 1:10-CV-480, 2013 WL 375477, *4 (N.D.N.Y. Jan. 29, 2013)
(citing Aktas v. JMC Dev. Co., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012)); see also Colton, 2017
WL 5508911, at *2 ("The responding Statement of Material Facts is not a mere formality, and the
courts apply this rule strictly. The failure to properly controvert a supported statement of fact by
pointing to admissible evidence contravening the movant's evidence results in the movant's
statement being deemed admitted") (collecting cases). Accordingly, the following factual
summary is derived from Defendants' statement of undisputed material facts and the supporting
evidence.
A. Plaintiff's Background
Plaintiff is from Wuhan, China and moved to the United States around 1989. See Dkt. No.
73-1 at ¶¶ 1, 4. He became a United States citizen in 1999. See id. at ¶ 4. Plaintiff earned
bachelor's and master's degrees from Wuhan University and a doctorate in physics from the
University of Alaska. See id. at ¶¶ 2, 5. He was hired at SUNY Albany in the 1990s1 and worked
there until his termination in 2024. See id. at ¶ 6. At the time of the events giving rise to this
action, Plaintiff worked as a Research Associate in the Atmospheric Sciences Research Center
("ASRC") at SUNY Albany. See id. at ¶ 7. The ASRC "develop[s] and administer[s] programs
in basic and applied sciences related to the atmospheric environment." Id. at ¶ 9.
Defendant Thorncroft assumed the role of ASRC Interim Director in February 2019. See
id. at ¶ 41. Before Defendant Thorncroft took over as Interim Director, he and Plaintiff had no
negative interactions. See id. at ¶ 42. Since 2019, however, the record shows numerous incidents
of escalating tension between Plaintiff and Defendants. Those incidents, which are summarized
in turn below, include: (1) Plaintiff's alleged removal from a New York State Energy Research
and Development Authority ("NYSERDA") project in 2019; (2) supposed allegations by
Defendant Thorncroft in 2019 that Plaintiff misused SUNY Albany property; (3) Defendant
Thorncroft's alleged interception of a Department of Energy ("DOE") proposal that Plaintiff
intended to make in 2019; (4) denial of a discretionary salary increase to Plaintiff in 2020; (5)
Plaintiff's removal from a project with Howard University in 2021; (6) a 2021 performance
evaluation where Plaintiff claims Defendant Thorncroft made racist comments about his accent;
(7) a 2021 counseling session where Plaintiff claims Defendant Selchick derogatorily compared
him to a janitor; (8) Plaintiff's filing of complaints with SUNY, the New York State Division of
Human Rights ("DHR"), and the Equal Employment Opportunity Commission ("EEOC"); (9)
Plaintiff's placement on an alternate assignment in 2021 during an investigation into his potential
forgery of Defendant Thorncroft's digital signature; and (10) discovery of a clandestine
1 Defendants state that Plaintiff began working at SUNY Albany in 1999, see Dkt. No. 73-1 at ¶
6 , but Plaintiff's curriculum vitae, which is part of the record, indicates he was a post-doctoral
researcher there as early as 1994, see Dkt. No. 83-1 at 2.
employment contract between Plaintiff and Wuhan University. Separately but relatedly, as
discussed below, Plaintiff was the subject of a federal investigation in 2020.
B. NYSERDA Project, Misuse of University Property, and DOE Proposal Interception
In 2019, Defendant Thorncroft allegedly removed Plaintiff from a NYSERDA-funded
project. See Dkt. No. 18 at ¶ 53. Defendant Thorncroft denies ever doing this, see Dkt. No. 73-1
at ¶ 46, and Plaintiff cites no evidence to the contrary, see Dkt. No. 85 at ¶ 46.
That same year, Defendant Thorncroft allegedly accused Plaintiff of misappropriating
University property for his own personal use. See Dkt. No. 18 at ¶ 54. Defendant Thorncroft
asserts that he never made this accusation, see Dkt. No. 73-1 at ¶ 52, and again, Plaintiff cites no
contrary evidence, see Dkt. No. 85 at ¶ 52. The property use issue was related to the occupation
of space at the ASRC by a company called ecoLong, which is operated by Plaintiff's daughter.
See Dkt. No. 73-1 at ¶¶ 54, 59-60. Plaintiff had developed a solar power monitoring technology
known as eSIR, which was licensed to ecoLong, and received compensation based on the license
agreement. See id. at ¶¶ 54-55, 57. Defendant Thorncroft asserts he was unable to obtain
clarification from Plaintiff or Plaintiff's daughter regarding the authorization for and duration of
ecoLong's presence in the ASRC, see id. at ¶¶ 63-65, and Plaintiff does not cite any evidence to
the contrary, see Dkt. No. 85 at ¶¶ 63-65. Eventually, it was determined that ecoLong had proper
authorization to use the ASRC space. See Dkt. No. 73-1 at ¶¶ 68-71. Plaintiff was never
disciplined or counseled in relation to this issue. See id. at ¶ 72.
In July 2019, Defendant Thorncroft allegedly blocked a $4 million project proposal that
Plaintiff planned to make to the DOE. See Dkt. No. 18 at ¶ 55. The record shows that to request
funding, researchers must adhere to a deadline-driven process set by SUNY Albany's Sponsored
Programs Administration Pre-Award Services. See Dkt. No. 73-1 at ¶ 78. The proposal
documents are then loaded into a portal for review by the appropriate administrators. See id. at ¶¶
80-81. The record indicates that Plaintiff's proposal could not move forward because he failed to
submit all the necessary items on time, see id. at ¶ 91, and Plaintiff cites no contrary evidence, see
Dkt. No. 85 at ¶ 97. Defendant Thorncroft avers that "[i]f [P]laintiff had timely submitted his
proposal and it had been presented for [his] review, he undoubtedly would have given his
approval." Dkt. No. 73-1 at ¶ 99. Plaintiff requested and received a detailed explanation of why
the project could not proceed. See id. at ¶¶ 106-07.
C. Federal Investigation
In June 2020, Plaintiff's home and office were searched as part of a federal investigation
into his alleged affiliation with and support from the Chinese government on research grants. See
Dkt. No. 73-1 at ¶¶ 115, 117, 434. Specifically, Plaintiff was accused of receiving undisclosed
funding through an employment agreement with Wuhan University and participation in a talent
recruitment program run by the Chinese government.2 See id. at ¶ 438.
Defendants Thorncroft and Selchick first became aware of the federal investigation around
the time Plaintiff's home and office were searched. See id. at ¶ 116. They later received a list of
items collected during the investigation, which included a copy of the talent program contract,
"miscellaneous paperwork" regarding Wuhan University, plane tickets, and documents associated
with the Bank of China. Dkt. No. 73-39 at 3; see Dkt. No. 73-1 at ¶¶ 334-35, 338. These items
raised concerns that Plaintiff had violated the New York Public Officers Law by failing to
disclose employment with and income from Wuhan University. See Dkt. No. 73-1 at ¶ 376.
2 The SUNY Research Foundation paid $313,574 in 2024 to resolve the allegations. See Dkt. No.
73-1 at ¶ 434.
Before learning of the federal investigation, Defendant Thorncroft was aware that SUNY
Albany and Wuhan University maintained a collaborative relationship memorialized by a
memorandum of understanding. See id. at ¶ 119. Defendant Thorncroft knew that Plaintiff
frequently visited and collaborated with Wuhan University, but was unaware of any separate
employment agreement between Plaintiff and Wuhan University. See id. at ¶¶ 120-21. As
explained below, Plaintiff's undisclosed employment with Wuhan University played a role in his
termination several years after Defendants Thorncroft and Selchick learned of the federal
investigation.
D. Denial of Discretionary Salary Increase
In 2020, Plaintiff did not receive a discretionary salary increase. See Dkt. No. 73-1 at ¶
135. These increases are awarded by the ASRC Director for exceptional performance. See id. at
¶¶ 129-30. The increases are usually under $2,000 and are not guaranteed. See id. at ¶ 131.
Defendant Thorncroft attests that race and national origin are not considered in awarding
discretionary salary increases. See id. at ¶ 134. He avers that an Asian researcher received one of
the highest increases in 2019 and 2020, and seven white employees did not receive an increase in
2020. See id. at ¶¶ 132-33. Defendant Thorncroft asserts that Plaintiff did not receive an increase
because his performance did not warrant one. See id. at ¶ 136. Although Plaintiff asserts that the
denial was discriminatory, he does not cite any evidence for that proposition. See Dkt. No. 85 at
¶¶ 132-37, 139.
E. Howard University Project
In January 2021, the ASRC was invited to submit a subcontractor proposal for a project
affiliated with Howard University. See Dkt. No. 73-1 at ¶ 234. Defendant Thorncroft asked a
white scientist, Dr. Jerald Brotzge, to lead the proposal. See id. at ¶ 237. Plaintiff asserts, without
citation, that he had a twenty-year relationship with Howard University. See Dkt. No. 85 at ¶¶
237-38. Plaintiff argued that he would lead SUNY Albany's response, not Dr. Brotzge. See Dkt.
No. 73-1 at ¶ 238. Defendant Thorncroft insisted that Dr. Brotzge would lead the proposal, and
Plaintiff protested again. See id. at ¶¶ 239-40. Plaintiff alleges that Defendant Thorncroft
discriminatorily removed him as the Principal Investigator of the project and replaced him with
Dr. Brotzge. See Dkt. No. 18 at ¶¶ 71-72.
On February 12, 2021, Plaintiff emailed approximately thirty people, stating in part: "I
cannot comprehend how it is acceptable to try to steal a project and then try underhanded tactics
when that fails." Dkt. No. 73-1 at ¶ 249. A few days later, Defendant Thorncroft asked Plaintiff
to collaborate with another scientist, Dr. Junhong Wang, on a budget proposal for the Howard
University project. See id. at ¶ 250. They were unable to coordinate, and Plaintiff circulated a
budget proposal that excluded Dr. Wang. See id. at ¶¶ 251-55. Defendant Thorncroft suggested
combining Plaintiff's budget and Dr. Wang's budget to share with Howard University, but
Plaintiff and Dr. Wang disagreed. See id. at ¶¶ 258-59.
Defendant Thorncroft asked Dr. Charles Ichoku, one of the Howard University scientists,
for his input. See id. at ¶ 261. Dr. Ichoku indicated that Plaintiff's proposal would be too
expensive, and Howard University was only interested in Dr. Wang's proposal. See id. at ¶ 262.
Defendant Thorncroft still advocated for both proposals to be sent to Howard University, but
before that happened, Plaintiff withdrew his proposal. See id. at ¶¶ 263-64. Howard University
accepted Dr. Wang's proposal. See id. at ¶ 269.
F. Defendant Thorncroft's Comments During the Performance Evaluation
On January 27, 2021, Defendant Thorncroft held a performance evaluation meeting with
Plaintiff. See Dkt. No. 73-1 at ¶ 140. Defendant Thorncroft noted Plaintiff's accomplishments
and provided constructive criticism in certain areas, including Plaintiff's reduction in research
funding over the prior year and a need to be more responsive and collaborative. See id. at ¶¶ 142,
151-52, 156-57. According to a written evaluation that Defendant Thorncroft drafted after the
meeting, Plaintiff's performance was rated "satisfactory." Id. at ¶ 150.
Without citing the record, Plaintiff claims that Defendant Thorncroft disparaged him
during the meeting for being a non-native English speaker and having an accent. See Dkt. No. 85
at ¶ 148; see also Dkt. No. 18 at ¶¶ 67-68. Specifically, Plaintiff alleges that Defendant
Thorncroft asked if he spoke "the same language" as Air Force scientists and stated that Plaintiff's
speech was "very technical." Dkt. No. 18 at ¶ 67. Plaintiff also alleges that Defendant Thorncroft
asked him, throughout the meeting, to repeat simple English words. See id. at ¶ 69. Defendant
Thorncroft avers that he does not recall making either comment, but in the past, he "may have
used the phrase 'speak the same language' to refer to scientific language; in other words, whether
someone who is not an atmospheric scientist understands the terminology." Dkt. No. 73-1 at ¶¶
146-47.
G. Defendant Selchick's Comments During the Counseling Session
On February 12, 2021, Plaintiff attended a counseling session with Defendants Thorncroft
and Selchick. See Dkt. No. 73-1 at ¶ 275. The meeting concerned Plaintiff's repeated failure to
provide missing information that was necessary for the eSIR to function correctly, despite
Defendant Thorncroft's directives to do so. See id. at ¶¶ 194, 198-216, 232; Dkt. No. 73-30.
Plaintiff surreptitiously recorded the meeting, and the recording was submitted with Defendants'
motion. See Dkt. No. 73-1 at ¶¶ 276-77; Dkt. No. 73-30.
Plaintiff alleges that, during the counseling session, Defendant Selchick "analogized
[Plaintiff's] obligation to follow [Defendant] Thorncroft's orders to a janitor being directed to
clean a room he had already cleaned." Dkt. No. 18 at ¶ 74. Defendant Selchick attests that he
was not likening Plaintiff to a janitor; rather, "he was simply attempting to explain that any
employee who has a supervisor must follow that supervisor's directions if the request is within the
scope of their employment, even if the employee is frustrated by the request or feels that the task
has already been completed." Dkt. No. 73-1 at ¶ 279. Defendant Selchick never made any
comments about Plaintiff's race or national origin during the counseling session.3 See id. at ¶ 280;
Dkt. No. 73-30. Although Plaintiff contends that Defendant Selchick's comments were
discriminatory, he cites no supporting evidence. See Dkt. No. 85 at ¶ 280.
Following the counseling session, Defendant Selchick drafted a counseling memorandum,
which Defendant Thorncroft signed. See Dkt. No. 73-1 at ¶ 284. Plaintiff submitted a written
rebuttal to the counseling memorandum. See id. at ¶ 286; Dkt. No. 73-32.
H. Plaintiff's SUNY and DHR Complaints
3 The Court reviewed the entire recording. The recording depicts Defendant Selchick as saying:
You disagree with what information they may or may not have.
[Defendant Thorncroft] is telling you to provide it or re-provide it.
And instead of saying, "OK, I'll do that," as frustrating as you may
find that to be, instead of saying, "OK, I'll do that," you're saying,
"You already got it. You already have it." That's insubordination.
That's a problem.
Dkt. No. 73-30 at 37:54-38:16. Plaintiff replies, "That's the truth. It's not insubordination. That's
the truth, right? You have to follow the truth, right?" Id. at 38:17-38:23. Defendant Selchick
replies:
It is insubordination regardless of whether it's true. Let me give you
an example. Let's say I ask a cleaner to clean a floor. And the
person cleans the floor. And I come in and I say, "It doesn't look
clean. I want you to clean it again." And the employee says, "But I
already cleaned it." And I say, "Well, I'm telling you to clean it
again." And they say, "I'm not doing that. I already cleaned it. It's
as clean as it's going to be." Is that not insubordination? If the
employee refuses to clean the floor?
Id. at 38:24-38:56.
On March 10, 2021, Plaintiff filed an internal discrimination complaint with SUNY's
Office of Equity and Compliance. See Dkt. No. 73-1 at ¶ 291; Dkt. No. 73-33. The SUNY
complaint identified the date of discrimination as January 27, 2021, and detailed Defendant
Thorncroft's remarks about Plaintiff's "technical" speech. Dkt. No. 73-1 at ¶ 292; Dkt. No. 73-33
at 1-2. It also identified as discriminatory conduct the January 2021 performance evaluation,
February 2021 counseling memorandum, and a report by Defendant Thorncroft to human
resources that Plaintiff was insubordinate. See Dkt. No. 73-1 at ¶ 292; Dkt. No. 73-33 at 2-3. The
Office of Equity and Compliance closed the complaint after Plaintiff filed an external DHR
complaint. See Dkt. No. 73-1 at ¶ 305.
Plaintiff filed the DHR complaint on March 18, 2021. See id. at ¶ 306; Dkt. No. 73-4. It
reiterated the same grounds for Plaintiff's discrimination allegations. See Dkt. No. 73-4 at 7-8. It
also stated that Plaintiff told Defendant Thorncroft he felt retaliated against for filing the internal
complaint. See id. at 8. On August 30, 2021, the DHR dismissed Plaintiff's complaint for
insufficient evidence. See Dkt. No. 73-1 at ¶ 308; Dkt. No. 73-5.
I. Forgery Investigation and Plaintiff's Alternate Assignment
Near the end of 2021, Plaintiff was rarely seen on the SUNY Albany campus. See Dkt.
No. 73-1 at ¶ 314. At that time, employees were permitted to work remotely fifty percent of the
time due to the COVID-19 pandemic. See id. at ¶ 312. To receive permission to work remotely,
employees needed to submit a telecommuting form for supervisory approval. See id. at ¶ 313.
Plaintiff's form, which shows Defendant Thorncroft's digital signature, was discovered and
reviewed in late 2021. See id. at ¶ 315; Dkt. No. 73-37. Defendant Thorncroft avers that he does
not remember reviewing or approving the form. See Dkt. No. 73-1 at ¶ 316. Plaintiff testified
that he could not remember whether he typed the digital signature himself. See id. at ¶ 317.
The SUNY Albany President's Office directed Defendant Selchick to place Plaintiff on an
alternate assignment while the potential forgery was under investigation. See id. at ¶ 319. On
November 17, 2021, Plaintiff received an alternate assignment letter. See id. at ¶ 320; Dkt. No.
73-38. The letter listed his new tasks and indicated that he must complete them from home. See
Dkt. No. 73-1 at ¶ 321; Dkt. No. 73-38 at 1-2. The letter was signed by Defendant Selchick, see
Dkt. No. 73-38 at 2, but Defendant Thorncroft had no input on the decision to place Plaintiff on
an alternate assignment, see Dkt. No. 73-1 at ¶ 325. Because Defendant Selchick could not
substantiate whether Plaintiff forged the digital signature, Plaintiff was never disciplined or
counseled about it. See id. at ¶ 375.
J. Plaintiff's EEOC Complaint
On December 23, 2021, after he was put on the alternate assignment, Plaintiff filed an
EEOC complaint. See Dkt. No. 73-1 at ¶ 309; Dkt. No. 73-6. Therein, Plaintiff identified March
18, 2021, as the earliest date of discrimination and retaliation. See Dkt. No. 73-6 at 1. The EEOC
complaint stated that Defendant Thorncroft questioned Plaintiff's communication abilities because
of his accent and removed him from a leadership position on a research project. See id. It also
alleged that Plaintiff's alternate assignment was retaliation for filing his SUNY and DHR
complaints. See Dkt. No. 73-1 at ¶ 309; Dkt. No. 73-6 at 1-2. On June 28, 2023, the EEOC
ceased its investigation and issued Plaintiff a right-to-sue letter. See Dkt. No. 73-7.
K. Wuhan University Employment Contract and Plaintiff's Termination
In January 2022, during the forgery investigation and prior to the EEOC's determination,
SUNY Albany received the list of Plaintiff's items seized during the federal investigation. See
Dkt. No. 73-1 at ¶ 334. The seized items caused concern that Plaintiff may have violated the New
York Public Officers Law by failing to make required disclosures about his affiliation with
Wuhan University. See id. at ¶ 336. On April 5, 2022, Defendant Selchick notified Plaintiff that
a disciplinary interrogation had been scheduled regarding the Public Officers Law issue. See Dkt.
No. 73-1 at ¶ 351; Dkt. No. 73-43. Defendant Thorncroft had no input on the decision to issue the
notice. See Dkt. No. 73-1 at ¶ 353.
During the interrogation, Defendant Selchick presented copies of Plaintiff's conflict
disclosure statements from 2013, 2017, and 2018, as well as an employment contract4 between
Plaintiff and Wuhan University. See id. at ¶¶ 355, 367. Defendants assert, and Plaintiff does not
contest, that Plaintiff was required to disclose remunerations exceeding $10,000 over the
preceding twelve months from any entity other than SUNY Albany or the SUNY Research
Foundation. See id. at ¶ 356; Dkt. No. 73-44. According to the newly discovered employment
agreement, Plaintiff was to be paid more than $10,000 each year from Wuhan University. See
Dkt. No. 73-1 at ¶ 357. There was no indication that Plaintiff had disclosed the contract—or its
promised payments—to SUNY Albany. See id. at ¶ 361. Although there was a memorandum of
understanding between SUNY Albany and Wuhan University, that memorandum did not
specifically mention Plaintiff or his ability to enter a personal employment contract with Wuhan
University. See id. at ¶¶ 362-63; Dkt. No. 73-13.
After the interrogation, the SUNY Albany President's Office decided that Plaintiff should
be suspended without pay based on his potential violation of the Public Officers Law. See Dkt.
No. 73-1 at ¶ 376. He was suspended on May 6, 2022, and served with a notice of discipline on
May 18, 2022. See id. at ¶¶ 377-78; Dkt. Nos. 73-47, 73-48. The record contains a revised notice
of discipline dated July 25, 2023. See Dkt. No. 73-1 at ¶ 404; Dkt. No. 73-49. Both notices
4 Defendant Selchick hired a third-party company to translate the contract from Chinese to
English. See Dkt. No. 73-1 at ¶ 341. Plaintiff has not contested the translation.
accused Plaintiff of violating the Public Officers Law by failing to disclose his employment
agreement and payment schedule with Wuhan University. See Dkt. Nos. 73-48, 73-49. The
revised notice of discipline informed Plaintiff that "[t]he penalty of termination" would be
imposed ten days from the date of the notice. See Dkt. No. 73-49 at 1.
Plaintiff requested an arbitration, as provided for in the collective bargaining agreement
between his labor union and SUNY Albany. See Dkt. No. 73-1 at ¶ 409. On April 15, 2024, after
a three-day hearing, an independent arbitrator found that termination was the appropriate penalty.
See Dkt. No. 73-12. Plaintiff was represented by union counsel at the hearing, had the
opportunity to present evidence, and had the opportunity to examine and cross-examine
witnesses. See Dkt. No. 73-1 at ¶¶ 412-13. The arbitrator opined as follows:
Suffice it here to say that it was reasonable for [SUNY Albany] to
conclude that [Plaintiff's] willful failure to disclose that he had
entered into a contract with a foreign educational institution
engaging in the very area of research that [SUNY Albany] itself
sought to foster with that institution justifies, if not requires,
[SUNY Albany] to no longer keep [Plaintiff] in its employ.
Dkt. No. 73-12 at 49; see Dkt. No. 73-1 at ¶ 428. Plaintiff asserts, without citing any evidence,
that "[t]he arbitration was not a full and fair hearing" and "[t]he [a]rbitrator's decision was
wrong." Dkt. No. 85 at ¶¶ 413, 415.
III. DISCUSSION
A. Standard of Review
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried, and that the undisputed facts warrant judgment for the
movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.
1994) (citations omitted). The court "cannot try issues of fact; it can only determine whether
there are issues to be tried." Id. at 36 (quotation and other citation omitted). Substantive law
determines which facts might affect the outcome of the suit under the governing law and are
therefore material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In assessing
the record to determine whether any issues of material fact exist, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers,
43 F.3d at 36 (citing Anderson, 477 U.S. at 255) (other citations omitted). Irrelevant or
unnecessary facts do not preclude summary judgment, even when they are in dispute. See
Anderson, 477 U.S. at 248 (citation omitted).
The moving party bears the initial burden of establishing that there is no genuine issue of
material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant meets this initial burden, the nonmoving party must demonstrate that there is a genuine,
material, unresolved issue for trial. See Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.
2005) (citations omitted). A genuine issue of material fact exists "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. "To
defeat summary judgment, therefore, nonmoving parties must do more than simply show that
there is some metaphysical doubt as to the material facts, . . . and they may not rely on conclusory
allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (internal citations and
quotation marks omitted). It is also well-settled that a party opposing a motion for summary
judgment may not simply rely on the assertions in its pleading. See Catrett, 477 U.S. at 324.
B. Title VII Claims
1. Exhaustion of Administrative Remedies
Title VII prohibits "discrimination in employment on the basis of race, color, religion, sex,
or national origin[,]" as well as "retaliation against persons who assert rights under the statute."
Fort Bend Cnty. v. Davis, 587 U.S. 541, 543 (2019). "As a precondition to the commencement of
a Title VII action in court, a complainant must first file a charge with the [EEOC]" regarding the
challenged conduct. Id. Where, as here, the complaint "concern[s] a practice occurring in a State
or political subdivision that has a fair employment agency of its own empowered 'to grant or seek
relief,' Title VII instructs the complainant to file [a] charge first with the state or local agency."
Id. at 544 (quoting 42 U.S.C. § 2000e-5(c)). "The complainant then has 300 days following the
challenged practice, or 30 days after receiving notice that state or local proceedings have ended,
'whichever is earlier,' to file a charge with the EEOC." Id. (quoting 42 U.S.C. § 2000e-5(e)(1)).
If a plaintiff files an EEOC charge and later brings a lawsuit alleging Title VII violations
not discussed in the charge, the new claims may be permitted "if they are 'reasonably related' to
the initial charge." Herzog v. McLane Ne., Inc., 999 F. Supp. 274, 275 (N.D.N.Y. 1998) (quoting
Butts v. N.Y.C. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by
statute on other grounds as recognized in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 692-
94 (2d Cir. 1998)); see Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (citing Legnani v.
Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)). In the Second Circuit,
the "reasonably related" exception is available in three situations: "(1) loose pleading; (2)
retaliation for filing an EEOC charge; and (3) similar subsequent incidents of discrimination."
Herzog, 999 F. Supp. at 275-76 (citing Butts, 990 F.2d at 1402-03).
Defendants argue that Plaintiff failed to timely exhaust administrative remedies for
conduct that occurred before May 22, 2020, which is 300 days prior to the date of the DHR
complaint. See Dkt. No. 73-2 at 15-16. That conduct includes the NYSERDA disagreement,
Defendant Thorncroft's alleged accusations that Plaintiff misused university property, and
Defendant Thorncroft's alleged interception of Plaintiff's DOE proposal. See id. at 16.
Defendants also argue that the DHR and EEOC complaints fail to identify those incidents as
discriminatory conduct. See id. at 16-17. They do not contest exhaustion as to other conduct
mentioned in the DHR and EEOC charges. Plaintiff argues that the incidents before May 22,
2020, were part of a "pattern of discrimination, spanning years," and are consequently not time-
barred. Dkt. No. 82 at 8. He also contends that the administrative complaints may be fairly read
to encompass the conduct occurring before May 22, 2020. See id. at 9.
To determine which conduct can support Plaintiff's Title VII claims, the Court looks to the
contents of the DHR and EEOC complaints. The DHR complaint explicitly claims retaliation for
filing the internal SUNY complaint. See Dkt. No. 73-4 at 3. It also identifies race and national
origin as Plaintiff's protected classes. See id. The narrative portion identifies the following acts
and events as violations of the HRL and Title VII: (1) Defendant Thorncroft's comments about
speaking "the same language" during the January 27, 2021, performance evaluation; (2) the
subsequent written evaluation that Plaintiff perceived as negative; (3) Defendant Thorncroft's
appointment of Dr. Brotzge, instead of Plaintiff, as SUNY Albany's Principal Investigator on the
Howard University project; (4) Defendant Thorncroft's insubordination report to human
resources; and (4) the 2021 counseling memorandum. See id. at 7-8. Similarly, the EEOC
complaint checks boxes for retaliation, race discrimination, and national origin discrimination.
See Dkt. No. 73-6 at 1. It identifies the earliest date of discrimination as March 18, 2021, the date
the DHR complaint was filed, and indicates that the discrimination was ongoing. See id. In a
shorter written narrative, the EEOC complaint alleges that: (1) Defendant Thorncroft "questioned
[Plaintiff's] ability to communicate with others because of [his] accent"; (2) Defendant Thorncroft
"removed [Plaintiff] as a Principal Investigator on a research project and has sought to remove
[him] from others"; (3) Plaintiff was retaliated against for filing the DHR complaint on March 18,
2021; and (4) Plaintiff was "suspended" on November 17, 2021. Id. at 1-2.
Chronologically, the 2019 incidents occurred prior to the conduct described in the DHR
and EEOC complaints. Thus, they cannot be considered "similar subsequent incidents of
discrimination." Herzog, 999 F. Supp. at 276 (emphasis added). Additionally, retaliation for
filing an administrative charge of discrimination is an exception to the exhaustion requirement.
See id. Thus, the remaining exhaustion question is whether the NYSERDA, property misuse, and
interception incidents are reasonably related to the conduct in the charges through "loose
pleading." Id.
Under the loose pleading exception, "[a] claim is considered reasonably related if the
conduct complained of [in the Title VII claim] would fall within the scope of the EEOC
investigation" arising from the charge. Deravin, 335 F.3d at 200-01 (citation and internal
quotation marks omitted). This determination depends on an examination of the factual
allegations of the administrative charge. See id. at 201. The DHR and EEOC complaints never
mention the NYSERDA project. Although the EEOC complaint alleges that Defendant
Thorncroft "removed [Plaintiff] as a Principal Investigator on a research project and has sought to
remove [him] from others[,]" Dkt. No. 73-6 at 1, Plaintiff has not alleged that he was a Principal
Investigator of the NYSERDA project. Furthermore, the EEOC complaint identifies March 18,
2021, as the earliest date of discrimination, but the NYSERDA disagreement allegedly occurred
in 2019. See Dkt. No. 18 at ¶ 53. As for the property misuse allegations and the DOE proposal
interception, even a broad reading of the DHR and EEOC complaints fails to identify those
events, which also allegedly occurred in 2019, see id. at ¶¶ 54-55, as bases for the Title VII
discrimination allegations. Accordingly, these allegations are not reasonably related to the
conduct described in the administrative charges, and the Court need not discuss their timeliness.
The Court also notes that, although Defendants do not challenge administrative exhaustion
of the discretionary salary increase disagreement in 2020, neither administrative complaint offers
any detail on that incident. The DHR complaint checks a box indicating that Plaintiff was denied
a pay raise, but the narrative section never discusses or even alludes to the date of that incident or
any other surrounding circumstances. See Dkt. No. 73-4 at 4, 7-8. Accordingly, the Court
determines that even a liberal reading of the DHR complaint fails to provide notice of a need to
investigate the 2020 denial of a discretionary pay increase to Plaintiff. See Trivedi v. N.Y. State
Unified Ct. Sys. Off. of Ct. Admin., 818 F. Supp. 2d 712, 737 (S.D.N.Y. 2011) (finding Title VII
discrimination claims unexhausted where the plaintiff simply checked a box on an intake
questionnaire and failed to provide substantive elaboration in the EEOC charge); Cooper v. Xerox
Corp., 994 F. Supp. 429, 436 (W.D.N.Y. 1998) ("[I]t is well-settled that merely checking a box,
or failing to check a box[,] does not necessarily control the scope of the charge. The more critical
analysis is whether there is any explanation or description supporting a particular claim").
Because the administrative charges fail to discuss or otherwise point to the NYSERDA
incident, property misuse allegations, DOE proposal interception, and discretionary salary
increase disagreement in a way that would notify the DHR and EEOC of a need to investigate
them, the Court concludes that Plaintiff did not administratively exhaust his claim as to those
events. Thus, for purposes of the Title VII discrimination claim, the Court considers the
performance evaluation and Defendant Thorncroft's associated comments, appointment of Dr.
Brotzge instead of Plaintiff as SUNY Albany's Principal Investigator on the Howard University
project, Defendant Thorncroft's insubordination report against Plaintiff, the counseling session
and Defendant Selchick's associated comments, the alternate assignment, and Plaintiff's
termination. The Court also considers whether Defendant retaliated against Plaintiff for filing
internal and external administrative complaints.
2. Discrimination
A Title VII discrimination plaintiff must establish that: "1) he belonged to a protected
class; 2) he was qualified for the position; 3) he suffered an adverse employment action; and 4)
the adverse employment action occurred under circumstances giving rise to an inference of
discriminatory intent." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (citing Collins v.
N.Y.C. Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002)). Once the plaintiff pleads and proves all
four elements, "the burden shifts to the defendant[s], [who must] offer a legitimate, non-
discriminatory rationale for [their] actions." Id. (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973)). From there, to defeat summary judgment, the plaintiff must show that the
defendants' proffered non-discriminatory reasons were a pretext for discrimination. See id. (citing
Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)); Bart v. Golub Corp., 96 F.4th
566, 570 (2d Cir. 2024) (citations omitted).
Defendants concede that Plaintiff satisfies the first two elements. See Dkt. No. 73-2 at 19
n.1. However, they assert that their challenged actions are not adverse employment actions within
the meaning of Title VII. See id. at 19-25. In opposition, Plaintiff argues that the adversity bar is
not high and the challenged actions qualify as adverse actions under Title VII. See Dkt. No. 82 at
11-24. Plaintiff is correct that although a Title VII discrimination plaintiff must show "some
harm" due to an employer's action, he is not required to "show that the injury satisfies a
significance test." Muldrow v. City of St. Louis, 601 U.S. 346, 350 (2024); see Dkt. No. 82 at 19.
However, even assuming arguendo that all the actions underlying Plaintiff's Title VII
discrimination claim constitute adverse employment actions, Plaintiff fails to raise any genuine
dispute of material fact that would suggest the causation element is satisfied. Accordingly, the
Court turns to that element of the Title VII discrimination analysis.
a. Causation
To demonstrate that an adverse action occurred because of a defendant's discriminatory
conduct, a plaintiff must adduce evidence showing an "inference of discriminatory intent" on the
defendant's part. Terry, 336 F.3d at 138 (citing Collins, 305 F.3d at 118). This inference can be
established "either by direct evidence of intent to discriminate or, more commonly, by indirectly
showing circumstances giving rise to an inference of discrimination." Bart, 96 F.4th at 569
(citation and internal quotation marks omitted).
Defendants argue that Plaintiff fails to establish any inference of discriminatory intent.
See Dkt. No. 73-2 at 25-31. Plaintiff argues that remarks by Defendants Thorncroft and Selchick
showing discriminatory animus "have been pleaded." Dkt. No. 82 at 25. His opposition papers
point to Defendant Thorncroft's comments about Plaintiff's "technical" speech and Defendant
Selchick's "janitor" remark during the counseling session. See id. at 24-27.
Because a party cannot defeat summary judgment simply by citing the allegations in its
pleadings, see Catrett, 477 U.S. at 324, the Court rejects Plaintiff's reliance on mere allegations
that Defendants Thorncroft and Selchick made discriminatory remarks. Moreover, Plaintiff's
repetitive summary of Defendants' actions does not point to any causal link—even a
circumstantial one—giving rise to an inference of discriminatory intent. For example, Plaintiff
argues without citation that Defendant Thorncroft, "immediately after harassing [Plaintiff] about
his English speaking, . . . expressed to [Defendant] Selchick that [Plaintiff] was incompatible with
SUNY moving forward." Dkt. No. 82 at 27. He also states in a conclusory fashion that
"[Defendant] Thorncroft has shown through his actions that he believes [Plaintiff] is beneath him;
this is racial animus." Id. at 31. Plaintiff adduces no evidence showing that the speech remark
had anything to do with Plaintiff's race or national origin, and similarly fails to controvert
Defendant Thorncroft's assertion that he was referring to scientific terms that outside scientists
might not understand. As for Defendant Selchick's "janitor" remark, Plaintiff states that "[t]he
remark[] most certainly could be viewed by a reasonable juror as discriminatory[,]" id. at 26, and
Defendant Selchick supported a racist atmosphere by making the remark, see id. at 31. Other than
the remark's occurrence "during a counseling session related to [Plaintiff's] job performance and
status[,]" Plaintiff does not identify any evidence supporting an inference of discriminatory intent.
Id. at 26. Likewise, Plaintiff does not make substantive arguments or cite any record evidence
supporting the necessary causal link for the Howard University disagreement, insubordination
report, alternate assignment, or termination. See Seils v. Rochester City Sch. Dist., 192 F. Supp.
2d 100, 107 (W.D.N.Y. 2002) ("For a plaintiff in a discrimination case to survive a motion for
summary judgment, he or she must do more than present conclusory allegations of discrimination
. . .") (citations and internal quotation marks omitted).
b. Pretext
Even if Plaintiff established an inference of discriminatory intent behind his termination,
Defendants provide a non-discriminatory justification that warrants attention from the Court.
Where a defendant provides a non-discriminatory reason for its conduct, the burden shifts to the
plaintiff to show "that the employer's stated reason was pretext for discrimination." Bart, 96 F.4th
at 570 (citations omitted). The plaintiff "is not required to demonstrate the falsity of the
employer's proffered reason." Id. (citing Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 156 (2d
Cir. 2010)) (emphasis removed). In other words, a plaintiff can show pretext by proving that "an
impermissible factor was a motivating factor, without proving that the employer's proffered
explanation was not some part of the employer's motivation." Id. (citations omitted).
As discussed, Defendants demonstrate that Plaintiff was terminated for failing to disclose
an employment agreement with Wuhan University, a violation of the New York Public Officers
Law. See Dkt. No. 73-2 at 48 ("The fact that the university with which [P]laintiff had entered into
a contract was a Chinese university made no difference—if he had entered into a clandestine
agreement with any other university or employer, the determination would have been the same").
That statute prohibits public employees from, inter alia, "accept[ing] other employment which
will impair [their] independence of judgment in the exercise of [their] official duties[,]"
"accept[ing] employment . . . which will require [them] to disclose confidential information
which [they] gained by reason of [their] official position or authority[,]" "disclos[ing] confidential
information acquired . . . in the course of [their] official duties[,]" and "us[ing] or attempt[ing] to
use [their] official position to secure unwarranted privileges or exemptions[.]" N.Y. PUB. OFF.
LAW §§ 74(3)(a)-(d). An independent arbitrator found that termination was the appropriate
penalty, given the loyalty issues raised by Plaintiff's conduct. See Dkt. No. 73-12 at 49.
"Federal court review of an arbitral judgment is highly deferential; such judgments are to
be reversed only where the arbitrators have exceeded their authority or made a finding in manifest
disregard of the law." Pike v. Freeman, 266 F.3d 78, 86 (2d Cir. 2001) (citation omitted).
Although Plaintiff repeatedly asserts that "[t]he [a]rbitrator's decision was wrong[,]" he cites no
evidence as to why. Dkt. No. 85 at ¶¶ 415-21. Aside from voicing his disagreement with the
arbitrator's decision, Plaintiff makes no substantive arguments regarding its propriety. He also
does not cite any evidence showing an impermissible motivating factor behind the termination.
Overall, his objections are conclusory and fail to show a genuine dispute of material fact as to the
reason for his termination. See Seils, 192 F. Supp. 2d at 107.
Defendants' motion is granted as to the Title VII discrimination claim.
3. Retaliation
To establish retaliation under Title VII, "an employee must show [1] participation in a
protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff;
and [3] a causal connection between the protected activity and the adverse employment action."
Terry, 336 F.3d at 141 (citation and internal quotation marks omitted). Importantly, a retaliation
plaintiff must prove "but-for" causation. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360
(2013). "This requires proof that the unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the employer." Id. The McDonnell Douglas burden-
shifting framework described above also applies to Title VII retaliation claims. See Terry, 336
F.3d at 141 (citation omitted).
Plaintiff's retaliation claim relies on three instances of protected activity: (1) the internal
SUNY complaint of March 10, 2021; (2) the DHR complaint of March 18, 2021; and (3) the
EEOC complaint of December 23, 2021. See Dkt. No. 18 at ¶ 135. He appears to identify the
alternate assignment, suspension, and termination as retaliatory adverse actions. See id. at ¶ 136.
Defendants concede that Plaintiff engaged in known protected activity by filing the three
complaints. See Dkt. No. 73-2 at 52 n.8. However, they argue that Plaintiff fails to demonstrate
any adverse actions or establish causation. See id. at 52-56. They also contend that they have
shown non-retaliatory reasons for the alternate assignment, suspension, and termination, which
Plaintiff cannot show were pretextual. See id. at 56-58. In opposition, Plaintiff argues that
Defendants took adverse actions against him, temporal proximity between his protected activity
and the adverse actions establishes causation, and Defendants' supposedly non-retaliatory
justifications were pretextual. See Dkt. No. 82 at 35-38. Based on the record, the Court can
resolve this claim by examining causation and pretext.
a. Causation
Even under the but-for causation standard, "'a plaintiff can indirectly establish a causal
connection to support a . . . retaliation claim by showing that the protected activity was closely
followed in time by the adverse [employment] action.'" Kwan v. Andalex Grp. LLC, 737 F.3d
834, 845 (2d Cir. 2013) (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady
Cnty., 252 F.3d 545, 554 (2d Cir. 2001)). Although the Second Circuit has "declined to draw 'a
bright line to define the outer limits beyond which' temporal proximity may be established, [it
has] generally held that causation can only be inferred after the passage of a few weeks or
months[.]" D'Andrea v. Nielsen, 765 Fed. Appx. 602, 605 (2d Cir. 2019) (summary order)
(quoting Gorman-Bakos, 252 F.3d at 554). "[A] delay of more than a year is fatal to a showing of
causation[.]" Id. (citing Cortes v. M.T.A. N.Y.C. Transit, 802 F.3d 226, 233 (2d Cir. 2015);
Burkybile v. Bd. of Educ. of the Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306, 314
(2d Cir. 2005)).
Some courts in this circuit have determined "that the temporal nexus between the
protected activity and the adverse employment action must be three months or less to establish a
causal connection. Czerwinski v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 6:18-CV-
635, 2022 WL 685287, *11 (N.D.N.Y. Mar. 8, 2022) (citation and internal quotation marks
omitted); see, e.g., Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005);
Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 1999). However, the Second Circuit has
found causation where the temporal gap was approximately twice as long. See Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) ("[W]e have previously held that five
months is not too long to find the causal relationship") (citing Gorman-Bakos, 252 F.3d at 555);
Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) ("The seven-month gap between
Summa's filing of the instant lawsuit and the decision to terminate her employment privileges is
not prohibitively remote") (citing Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir.
1980)).
Here, the record shows that Plaintiff was put on an alternate assignment in November
2021, approximately eight months after he filed the SUNY and DHR complaints. See Dkt. No.
73-1 at ¶¶ 291, 306, 320. Plaintiff does not dispute that timeline. See Dkt. No. 85 at ¶¶ 291, 306,
320. The record also shows that Plaintiff was suspended without pay on May 6, 2022,
approximately four-and-a-half months after he filed the EEOC complaint. See Dkt. No. 73-1 at ¶¶
309, 377. Plaintiff does not dispute those dates, either. See Dkt. No. 85 at ¶¶ 309, 377. The
parties do not dispute that Plaintiff was served with a revised notice of discipline on July 25,
2023, which notified Plaintiff of the charges against him and SUNY Albany's intent to terminate
his employment, more than eighteen months after he filed the EEOC complaint. See Dkt. No. 73-
1 at ¶ 404; Dkt. No. 85 at ¶ 404; Dkt. No. 73-49. It is also undisputed that an arbitrator upheld
Plaintiff's termination on April 15, 2024, more than three years after the SUNY and DHR
complaints were filed and almost two-and-a-half years after the EEOC complaint was filed. See
Dkt. No. 73-1 at ¶ 428; Dkt. No. 85 at ¶ 428 (stating that the arbitrator's decision was wrong, but
not disputing the date of the arbitrator's decision); Dkt. No. 73-12.
Because Plaintiff was served with the notice of discipline more than a year and a half after
he filed the EEOC complaint, the Court determines that, as a matter of law, he has not established
causation as to that act or the associated termination. However, in light of Second Circuit
precedent, the Court finds that the eight-month gap preceding the alternate assignment and the
four-and-a-half-month gap preceding the suspension do not automatically preclude a finding of
causation. For those acts, the Court turns to Defendants' non-retaliatory justifications and
Plaintiff's contention that they were pretextual.
b. Pretext
If a Title VII plaintiff establishes a prima facie claim of retaliation, the defendant has an
opportunity to present non-retaliatory reasons for its actions. See Kwan, 737 F.3d at 845 (citation
omitted). From there, the burden shifts back to the plaintiff to show that the defendant's reasons
were a pretext for retaliation. See id. (citation omitted). Importantly, "[t]emporal proximity alone
is insufficient to defeat summary judgment at the pretext stage." Id. at 847 (citing El Sayed v.
Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010), abrogated in part on other grounds,
Nassar, 570 U.S. 338); see Brown v. City Univ. of N.Y., No. 25-CV-694, 2026 WL 456924, *3
(2d Cir. Feb. 18, 2026) (citing Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 254-55 (2d Cir.
2014)). Although a plaintiff may rely in part on temporal proximity to show pretext, he must cite
other evidence in addition. See Kwan, 737 F.3d at 847 (citations omitted); Brown, 2026 WL
456924, at *3-4 (rejecting a plaintiff's pretext argument because she provided no evidence, other
than the alleged retaliation's temporal proximity to her protected activity, to show that her
employer's non-retaliatory justifications were pretextual).
Defendants argue that they presented legitimate, non-retaliatory reasons for the alternate
assignment and suspension. Specifically, they assert that the SUNY Albany President's Office
directed Defendant Selchick "to place Plaintiff on an alternate assignment while the forged
telecommuting form was investigated." Dkt. No. 73-2 at 43. They also argue that the SUNY
Albany President's Office ordered Plaintiff's suspension based on the possibility that Plaintiff
violated the Public Officers Law. See id. at 47. Plaintiff argues that "Defendants' stated business
reasons for their adverse employment actions, reassigning [Plaintiff], suspending him, and
ultimately firing him are unfounded and pretextual[,]" Dkt. No. 82 at 38, but other than the
temporal proximity discussed above, Plaintiff cites no evidence of retaliatory pretext regarding
the alternate assignment and suspension.
Defendants' motion is granted as to the Title VII retaliation claim.
C. HRL Claims
Plaintiff makes discrimination and retaliation claims under the HRL that mirror those
under Title VII. See Dkt. No. 18 at ¶¶ 138-51. These claims are asserted against all Defendants.
See id. They fail as to SUNY Albany because it is immune under the Eleventh Amendment, and
they fail on the merits as to Defendants Thorncroft and Selchick.
1. Sovereign Immunity
Defendants argue that SUNY Albany is a state agency with sovereign immunity from the
HRL claims. See Dkt. No. 73-2 at 60. Plaintiff's opposition papers do not respond to this
argument. See Dkt. No. 82 at 40.
"The Eleventh Amendment . . . bars federal courts from exercising subject matter
jurisdiction over claims against a state or one of its agencies absent their consent to such a suit or
an express statutory waiver of immunity." Kilcher v. N.Y. State Police, No. 1:19-CV-157, 2019
WL 2511154, *3 (N.D.N.Y. June 18, 2019) (citing Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 90-100 (1984)). The Second Circuit has recognized that, "[f]or Eleventh
Amendment purposes, SUNY is an integral part of the government of the State [of New York]
and when it is sued[,] the State is the real party." Dube v. State Univ. of N.Y., 900 F.2d 587, 594
(2d Cir. 1990) (citation and internal quotation marks omitted). Because neither SUNY nor the
State of New York has consented to suit, SUNY Albany has sovereign immunity as to the HRL
claims.5 See Wiley v. SUNY Plattsburgh, 407 F. Supp. 3d 119, 126 (N.D.N.Y. 2019) (stating that
a plaintiff's HRL claims against a SUNY school were barred by sovereign immunity).
Defendants' motion is therefore granted on the HRL claims as to SUNY Albany. Because
"sovereign immunity implicates jurisdictional concerns[,]" Hale v. Mann, 219 F.3d 61, 67 (2d Cir.
2000) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996); Pennhurst, 465 U.S. at
100), the DHR claims against SUNY Albany are dismissed without prejudice, see Canfield v.
New York, No. 6:24-CV-1357, 2025 WL 1288747, *2-3 (N.D.N.Y. May 5, 2025); Karupaiyan v.
New York, No. 23-CV-1257, 2024 WL 2174272, *2 (2d Cir. May 15, 2024) (summary order)
(determining that, where sovereign immunity applied, the district court erroneously dismissed the
plaintiff's claims with prejudice instead of without prejudice).
2. Merits
HRL retaliation claims are subject to the same burden-shifting framework that Title VII
uses.6 See Tafolla v. Heilig, 80 F.4th 111, 125 (2d Cir. 2023) (citation omitted); Whipple v. Reed
Eye Assocs., 524 F. Supp. 3d 76, 95 (W.D.N.Y. 2021) (citations omitted). Thus, the HRL
retaliation claim is dismissed as to Defendants Thorncroft and Selchick for the same reasons as its
Title VII counterpart.
5 Because "Congress has abrogated the states' sovereign immunity for claims under Title VII," the
Court's jurisdiction over those claims is proper. Baez v. New York, 56 F. Supp. 3d 456, 464
(S.D.N.Y. 2014) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 448 (1976)).
6 Although the HRL uses a "similar but not identical" standard to determine what constitutes
protected activity, Van Denburgh v. New York, No. 1:24-CV-989, 2025 WL 2483415, *23
(N.D.N.Y. Aug. 28, 2025), Defendants do not challenge Plaintiff's engagement in protected
activity, see Dkt. No. 73-2 at 52 n.8.
The HRL discrimination claim is also subject to the same standard as its Title VII
counterpart. See Musante v. Mohawk Valley Cmty. Coll., 270 F. Supp. 3d 564, 577 (N.D.N.Y.
2017) (quoting Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012);
citing Bader v. Special Metals Corp., 985 F. Supp. 2d 291, 305 (N.D.N.Y. 2013)). Defendants
argue that HRL liability cannot attach because Defendants Thorncroft and Selchick are not
considered employers under the HRL. See Dkt. No. 73-2 at 60-61. Plaintiff argues otherwise.
See Dkt. No. 82 at 40. However, the Court need not reach that issue because it has already
determined, for the properly exhausted portions of the Title VII discrimination claim, that
Plaintiff fails to raise a genuine dispute of material fact as to causation.
The HRL does not impose an exhaustion requirement, see Bader, 985 F. Supp. 2d at 318
n.18 (citation omitted), so the Court considers the merits of Plaintiff's HRL discrimination claim
for the events not properly exhausted under Title VII. Plaintiff fails to cite any evidence showing
a genuine dispute of material fact on the causation prong for the NYSERDA disagreement,
property misuse allegations, DOE proposal, and denial of the discretionary salary increase. In
other words, Plaintiff fails to adduce any evidence in the record supporting an inference of
discriminatory intent behind those actions. As explained, Plaintiff's response to Defendants'
statement of material facts includes only conclusory statements of discriminatory animus, with no
citations to the record. See Dkt. No. 85. Plaintiff's HRL discrimination claim is therefore
dismissed.
Defendants' motion is granted on this claim as to Defendants Thorncroft and Selchick.
D. Equal Protection Claim
Plaintiff alleges that Defendants Thorncroft and Selchick violated his constitutional rights
by treating him with discriminatory and retaliatory animus. See Dkt. No. 18 at ¶¶ 152-57.
Specifically, he sues them in their personal capacities for equal protection violations. See id.
Defendants Thorncroft and Selchick argue that the claim fails on the merits or, alternatively, that
they are entitled to qualified immunity. See Dkt. No. 73-2 at 58-60. Plaintiff opposes both
premises. See Dkt. No. 82 at 38-39.
Where a plaintiff alleges a Title VII discrimination or retaliation claim and an equal
protection claim against a state actor, "[t]he elements of one are generally the same as the
elements of the other and the two must stand or fall together." Feingold v. New York, 366 F.3d
138, 159 (2d Cir. 2004) (citing Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998);
Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996)); see Cunningham v. N.Y. State Dep't of Lab.,
326 Fed. Appx. 617, 620 (2d Cir. 2009) (summary order); Stoutenger v. City of Fulton, 605 F.
Supp. 3d 432, 459 (N.D.N.Y. 2022) (citations omitted); Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 82, 91 (2d Cir. 2015). Here, the record amply shows that Defendants
Thorncroft and Selchick worked for SUNY Albany at the time of the challenged conduct, and
Defendants do not contest that they were state actors. Because Plaintiff's discrimination and
retaliation claims fail for the reasons stated above, the equal protection claim fails for the same
reasons. See Cunningham, 326 Fed. Appx. at 620.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the reasons set forth above, the Court hereby
ORDERS that Defendants' motion for summary judgment (Dkt. No. 73) is GRANTED;
and the Court further
ORDERS that Plaintiff's HRL discrimination and retaliation claims against SUNY
Albany are DISMISSED without prejudice for lack of jurisdiction; and the Court further
ORDERS that the rest of Plaintiffs claims are DISMISSED with prejudice; and the
Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: July 28, 2026 MWe ye ee Loge Ses te,
Albany, New York Mae A. D’ Agosting””
U.S. District Judge
32