In Balk v. New York Institute of Technology, No. 16-984-CV, 2017 WL 1103428, (2d Cir. Mar. 23, 2017) (Summary Order), the Second Circuit affirmed the dismissal of the race, national origin, and religious discrimination claims asserted by the plaintiff.
The court considered, and rejected, plaintiff’s reliance on the so-called “customer preference” doctrine, which provides (in sum) that an employer may not rely on customers’ racially-motivated complaints about an employee as being “non-discriminatory” reasons for its adverse action(s).
In this case:
[Plaintiff] Balk – a white, non–Muslim, American citizen – began teaching at NYIT’s Bahrain campus in June 2006 pursuant to a one–year employment contract. … On April 3, 2007, NYIT renewed Balk’s teaching contract for another year, pursuant to which he would continue teaching at NYIT Bahrain until May 31, 2008.
On February 18, 2008, Balk met in Bahrain with a group of students who were planning to travel to New York City. Balk made certain comments during this meeting that led to two of the students filing a formal complaint with the NYIT administration on February 24, 2008. The students alleged that Balk made anti–Islamic and offensive remarks. The students stated they “were surprised and shocked with the words that Professor Dennis Balk said as they were extremely rude, humiliating, disrespectful and full of clear racism.” App. 175. The students stated that “[Balk] gave examples about democracy that insults our religious beliefs and as a professor he should realize that the words he said about our Prophet Mohammed peace be upon him are very sensitive and will never be the definition of democracy.” Id. On his side, Balk acknowledged that he admonished the students that “when they go to the west to be able to understand why people might feel uncomfortable with them,” and described a “hypothetical walk down the street where you would pass a mosque or a church, I remember thinking maybe it was Episcopalian where there was a gay congregation and you might see within that church their iconography, their words on the wall where prophets and Gods would be gay.
Plaintiff began to fear for his physical safety, and ultimately left the country. He “alleges that he was forced to abandon his teaching position at NYIT Bahrain and that his contract was not renewed for a third term because of his race, religion, and national origin” and “that NYIT discriminated against him by deferring to the discriminatory animus of its Muslim students and faculty members.”
Applying the law, the court explained, inter alia:
[E]ven assuming that Balk demonstrated a prima facie case of discrimination, NYIT provided legitimate, non–discriminatory reasons for its actions: it removed Balk from Bahrain because it had become unsafe for him to remain there, and it did not provide Balk with a new contract because there were no positions available for him in the United States. Balk did not present sufficient evidence to support a rational finding that NYIT’s stated reasons were false, and that more likely than not discrimination was “the real reason” for its employment actions.
On the record before the district court, no reasonable jury could have found that NYIT’s stated concern for Balk’s safety was pretextual or that the real reason for the decision to remove him from Bahrain was discrimination. Balk himself expressed concern about his safety. Whether there was a basis for their accusations or not, students complained that Balk had used words with them that were “extremely rude, humiliating, disrespectful and full of clear racism.” App. 175. Balk acknowledged using words that some certainly could have found offensive. Id. at 735, 741, 742. Again, whether they were accurate or not, articles were published reporting that a professor at a private university had engaged in blasphemous conduct, and Balk acknowledges that, although he was not named, he was widely believed to be the professor in question. As a reasonable jury could only find, these circumstances created an unsafe environment for Balk.
The court also rejected, plaintiff’s argument based on the “customer preference” doctrine, namely, “that NYIT discriminated against him to satisfy the discriminatory animus of the customer base at NYIT Bahrain[.]” Plaintiff “has not presented sufficient evidence from which a reasonable jury could find that the students or others were motivated by discriminatory animus toward him, or that NYIT succumbed to any discriminatory animus.”
The court also rejected plaintiff’s breach of contract and fraud claims.