Chinese Professor Plausibly Alleges Intentional Discrimination Under 42 U.S.C. 1981; May Amend Complaint

In Yang Zhao v. Keuka College, 2017 WL 3917145 (W.D.N.Y., 2017), plaintiff – a U.S. Citizen of Chinese origin – alleges that she was denied tenure because of her ethnicity, race, and national origin.

The court granted plaintiff’s motion to amend her complaint to add a claim under 42 U.S.C. § 1981, finding that plaintiff plausibly alleged that she was subject to intentional discrimination.[1]The court held that plaintiff failed to plausibly allege a hostile work environment claim.

Section 1981 provides:

All persons … shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Initially, the court noted that as a person of Chinese national origin, she is protected by the statute:

Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” St. Francis Coll. v. Al–Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). Congress intended to “provide protection for immigrant groups such as the Chinese.” Id. Here, Plaintiff alleges that she was denied tenure “because of her racial and national origin of being Chinese.” (Dkt. 16–1 at ¶ 16). As such, she has satisfied the first prong of a prima facie case.

Next, the court held that plaintiff sufficiently stated a claim under § 1981.

Under Second Circuit law, “if the allegations in a complaint establish a prima facie case under the McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) burden-shifting framework, the plaintiff has sufficiently stated a claim under § 1981.”


At the first stage of the McDonnell Douglas analysis, the plaintiff bears the burden of establishing a prima facie case of discrimination by showing that: 1) [she] belonged to a protected class; 2) [she] was qualified for the position; 3) [she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.

Plaintiff’s proposed amended complaint satisfied each of these four elements.

With respect to the fourth element – intent to discriminate – the court explained:

Plaintiff puts forth multiple allegedly discriminatory statements made by Forestell in his recommendation to deny Plaintiff tenure. (See, e.g., Dkt. 16–1 at ¶ 32 (discounting Plaintiff’s positive evaluation from Chinese students because “they are far less likely than American students to appear disrespectful by questioning authority”); id. at ¶ 35 (criticizing Plaintiff for speaking too quickly to be understood); id. at ¶ 43 (same)).

It then cited the four factors that the Second Circuit has identified as being relevant to “whether alleged discriminatory remarks are probative of discriminatory intent”, namely:

(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).

Applying the law, the court held:

Each of these factors suggests that the alleged remarks are probative of discriminatory intent. Forestell, as Keuka’s Provost, had a significant role in the tenure decision concerning Plaintiff, as evidenced by his recommendation to Diaz–Herrerra. The allegedly discriminatory remarks at issue were made in the written recommendation itself. That recommendation was adopted by Diaz–Herrerra, who then denied Plaintiff tenure. Plaintiff has plausibly alleged that the remarks were discriminatory. Defendants painstakingly argue otherwise, but their arguments are belied by the actual text of the alleged remarks in Forestell’s recommendation.2 Finally, the recommendation was clearly related to the decision-making process, in that it recommended a course of action to Diaz–Herrerra.

It was careful to note, however, that this “does not mean that Plaintiff can prove discriminatory intent at trial, or even sufficiently to survive a motion for summary judgment”, but “simply … that under the relaxed standard at this stage in the proceedings, she has plausibly alleged discriminatory intent.”

Therefore, since plaintiff plausibly alleged discrimination, her amendment would not be futile.

1 The court held that plaintiff failed to plausibly allege a hostile work environment claim.
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