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`20-1341-cv
`Gong v. City of New York
`
`
`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
`8th day of February, two thousand twenty-one.
`
`PRESENT:
`
`
`No. 20-1341
`
`
`
`
`JOHN M. WALKER, JR.,
`RICHARD C. WESLEY,
`WILLIAM J. NARDINI,
`
`Circuit Judges.
`
`
`
`
`_______________________________________
`
`HONGMIAN GONG,
`
` Plaintiff-Appellant,
`
`
`v.
`
`
`CITY UNIVERSITY OF NEW YORK,
`
`
`
`
`
`Defendant-Appellee.*
`
`_______________________________________
`
`FOR PLAINTIFF-APPELLANT:
`
`
`FOR DEFENDANT-APPELLEE:
`
`G. OLIVER KOPPELL (Daniel F. Schreck, on
`the brief), Law Offices of G. Oliver Koppell
`& Associates, New York, NY.
`
`ERIC DEL POZO, Assistant Solicitor General
`(Barbara D. Underwood, Solicitor General,
`and Anisha S. Dasgupta, Deputy Solicitor
`
`
`* The Clerk of Court is directed to amend the caption as set forth above.
`
`
`
`
`
`General, on the brief), for Letitia James,
`Attorney General for the State of New York,
`New York, NY.
`
`On appeal from the United States District Court for the Southern District of New York
`
`
`
`(Lorna G. Schofield, J.).
`
`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
`
`DECREED that the judgment of the district court is AFFIRMED.
`
`Plaintiff-Appellant Hongmian Gong appeals from a judgment of the district court, entered
`
`on March 27, 2020, in favor of her employer, City University of New York (“CUNY”). Gong, an
`
`Asian American professor of geography at CUNY Hunter College, brought this action pursuant to
`
`Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, alleging discrimination, hostile
`
`work environment, and retaliation. We assume the reader’s familiarity with the record.
`
`In fall 2017, CUNY removed Gong from the graduate advisor and fellowship coordinator
`
`positions at the university. CUNY says that it decided to remove her based on its finding pursuant
`
`to an investigation that Gong mismanaged graduate student funds. But Gong claims that CUNY
`
`has long discriminated against her because of her race and national origin, including by delaying
`
`her professorship promotions, assigning her to teach two courses on East Asian and Chinese
`
`geography, directing her to hold evening office hours for graduate advising while Caucasian
`
`faculty members who also advised graduate students were not similarly required, replacing her
`
`with a Caucasian adjunct professor on a search committee, and organizing a faculty meeting that
`
`included presentations criticizing certain actions by the People’s Republic of China, particularly
`
`in the South China Sea. The district court dismissed Gong’s discrimination and hostile work
`
`
`
`
`
`2
`
`
`
`
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`environment claims, finding that Gong’s allegations did not raise a plausible inference of
`
`discrimination or rise to the level of pervasive and severe conduct that altered the conditions of
`
`her employment. See Gong v. City Univ. of New York, No. 18-CV-3027, 2019 WL 952340, at *4,
`
`*7 (S.D.N.Y. Feb. 27, 2019) (“Gong I”). The court also granted CUNY summary judgment on
`
`Gong’s retaliation claim, finding that CUNY had articulated a legitimate reason for Gong’s
`
`removal, and that Gong had failed to show that CUNY’s proffered reason was a pretext for
`
`retaliation. See Gong v. City Univ. of New York, No. 18-CV-3027, 2020 WL 1467353, at *4
`
`(S.D.N.Y. Mar. 25, 2020) (“Gong II”). This appeal followed.
`
`We review the grant of a motion to dismiss and of summary judgment de novo. Aegis Ins.
`
`Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013). When reviewing a Rule
`
`12(b)(6) dismissal, we “accept[] all factual claims in the complaint as true and draw[] all
`
`reasonable inferences in the plaintiff’s favor.” United States v. Strock, 982 F.3d 51, 58 (2d Cir.
`
`2020) (internal quotation marks and citation omitted). When reviewing a grant of summary
`
`judgment, we must “construe the evidence in the light most favorable to the non-moving party”
`
`and find that “there is no genuine dispute as to any material fact and the movant is entitled to
`
`judgment as a matter of law.” ING Bank N.V. v. M/V Temara, 892 F.3d 511, 518 (2d Cir. 2018)
`
`(internal quotation marks and citation omitted); see also Fed. R. Civ. P. 56(a).
`
`
`
`We affirm the district court’s February 27, 2019, dismissal of Gong’s discrimination and
`
`hostile work environment claims. See Gong I, 2019 WL 952340 at *9. Gong’s discrimination
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`claim fails because Gong did not adequately allege that her race or national origin was a motivating
`
`factor in CUNY’s decision to remove her from the graduate advisor and fellowship coordinator
`
`
`
`
`
`3
`
`
`
`
`
`positions. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015) (“[A]
`
`plaintiff must plausibly allege that (1) the employer took adverse action against h[er] and (2) h[er]
`
`race, color, religion, sex or national origin was a motivating factor in the employment decision.”).
`
`Gong claims that the district court failed to consider how all the alleged incidents together give
`
`rise to a plausible inference of discrimination. But Gong’s complaint does not identify the “bits
`
`and pieces of information” necessary “to support an inference of discrimination, i.e., a mosaic of
`
`intentional discrimination” in relation to the adverse employment action at issue. See id. at 86
`
`(internal quotation marks and citation omitted). For many of the alleged incidents, Gong does not
`
`explain how they are connected to her race or national origin. The allegations that are related to
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`Gong’s race or national origin—for example, Gong’s course assignments, being replaced on a
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`search committee, being directed to hold evening office hours, and the faculty meeting—are not
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`connected to her removal from the graduate advisor and fellowship coordinator positions and fail
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`to “provide a contextual basis for inferring discrimination” for that decision. See id. at 89; see also
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`Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010) (“[T]he more remote and oblique
`
`the remarks are in relation to the employer's adverse action, the less they prove that the action was
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`motivated by discrimination.”). Gong’s allegations, viewed together, do not plausibly give rise to
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`an inference that her race or national origin were motivating factors in CUNY’s decision to remove
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`her as a graduate advisor and fellowship coordinator.
`
`
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`Similarly, Gong’s hostile work environment claim fails because the alleged incidents are
`
`too mild and “episodic” to support her claim. Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir.
`
`2014) (“The incidents complained of ‘must be more than episodic; they must be sufficiently
`
`
`
`
`
`4
`
`
`
`
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`continuous and concerted in order to be deemed pervasive.’” (quoting Alfano v. Costello, 294 F.3d
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`365, 374 (2d Cir. 2002))). Again, many of the alleged incidents lack any racial overtone and, in
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`general, the alleged incidents “were too few, too separate in time, and too mild . . . to create an
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`abusive working environment.” Alfano, 294 F.3d at 380. Accordingly, the district court did not
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`err in dismissing Gong’s discrimination and hostile work environment claims. Nor did it err in
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`declining to sua sponte grant Gong an opportunity to amend her complaint. See Gallop v. Cheney,
`
`642 F.3d 364, 369 (2d Cir. 2011) (“[N]o court can be said to have erred in failing to grant a request
`
`that was not made.”); see also Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir.
`
`2006) (“A counseled plaintiff is not necessarily entitled to a remand for repleading whenever he
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`has indicated a desire to amend his complaint, notwithstanding the failure of plaintiff’s counsel to
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`make a showing that the complaint’s defects can be cured.”).
`
`
`
`We also affirm the district court’s March 25, 2020, decision granting CUNY summary
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`judgment on Gong’s retaliation claim. See Gong II, 2020 WL 1467353 at *4; see also Kwan v.
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`Andalex Grp. LLC, 737 F.3d 834, 844–46 (2d Cir. 2013) (explaining that under McDonnell
`
`Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must first establish a prima facie case of
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`retaliation; then the defendant must offer a non-retaliatory reason for the employment action; and
`
`then the plaintiff must show that the retaliatory reason is a “but-for cause of [the] adverse
`
`employment action,” which she can do by––for example––demonstrating that the non-retaliatory
`
`reason is pretextual). The record shows that CUNY did not learn about Gong’s complaint with
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`the Equal Employment Opportunity Commission (“EEOC”) until after it decided to remove her
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`from the graduate advisor and fellowship coordinator positions, and thus CUNY could not have
`
`
`
`
`
`5
`
`
`
`
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`made the decision in retaliation for the EEOC complaint. See id. at 844 (explaining that to establish
`
`a prima facie case of retaliation, a plaintiff must show, inter alia, “a causal connection between
`
`the protected activity and the adverse employment action” (internal quotation marks omitted)).
`
`But even assuming that CUNY knew about Gong’s complaint before deciding to remove her,
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`CUNY proffers a legitimate, non-retaliatory reason for Gong’s removal: the university found that
`
`Gong had mismanaged graduate student funds and neglected her responsibilities as an advisor.
`
`Gong challenges the legitimacy of CUNY’s documents related to its decision-making process and
`
`argues that the timeline of her EEOC complaint and removal is exceedingly suspect. “Temporal
`
`proximity alone is insufficient to defeat summary judgment at the pretext stage.” Kwan, 737 F.3d
`
`at 847. Although some of the irregularities that Gong points out in CUNY’s documents––such as
`
`the Appeals Committee’s report––are troubling, Gong has not met her burden of producing
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`“sufficient evidence to demonstrate that” Gong would not have been removed from the graduate
`
`advisor and fellowship coordinator positions “in the absence of the retaliatory motive.” Id. at 842,
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`846. Accordingly, the district court did not err by granting summary judgment on Gong’s
`
`retaliation claim.
`
`We have considered Gong’s remaining arguments and conclude that they are without merit.
`
`For the foregoing reasons, the judgment of the district court is AFFIRMED.
`
`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk of Court
`
`
`
`
`
`6
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`
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