Poor-Performance Evidence—Including OCR Findings—Defeats Rehabilitation Act and § 1981 Retaliation Claims Absent Proof of Pretext (Second Circuit Summary Order)

1. Introduction

Michele A. Baptiste, a former Dean of Diversity, Compliance, and Faculty Relations at the City College of New York, sued her former employer, the City University of New York (“CUNY”), and City College President Vincent Boudreau. Baptiste alleged that she was fired in retaliation for opposing discriminatory acts, asserting federal retaliation claims under the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1981, along with a retaliation claim under the New York City Human Rights Law (“NYCHRL”).

The central appellate issue was whether, at the summary-judgment stage, Baptiste produced evidence from which a reasonable factfinder could conclude that CUNY’s stated reason for termination—poor performance—was a pretext for retaliation.

2. Summary of the Opinion

The Second Circuit affirmed the judgment granting summary judgment to Defendants on the federal retaliation claims and noted that Baptiste abandoned challenges to previously dismissed claims and to the district court’s decision declining supplemental jurisdiction over the NYCHRL claim.

Assuming (without deciding) that Baptiste established a prima facie case of retaliation, the panel held:

• Defendants met their burden to articulate a legitimate, non-retaliatory reason for termination—poor performance—supported by substantial record evidence, including two federal OCR investigations critical of her office’s handling of discrimination complaints.
• Baptiste failed to identify evidence sufficient for a rational factfinder to conclude that the performance rationale was pretext for retaliation.

3. Analysis

3.1 Precedents Cited

The summary order is largely an exercise in applying established Second Circuit frameworks. The cited decisions structure the court’s review and the burden of proof:

• Bey v. City of N.Y., 999 F.3d 157 (2d Cir. 2021)
  Used for the appellate standard of review: summary judgment is reviewed de novo; evidence is construed in the nonmovant’s favor; and summary judgment is appropriate only where there is “no genuine dispute as to any material fact.” This frames the court’s task as asking whether Baptiste created a triable issue on pretext.
• Treglia v. Town of Manlius, 313 F.3d 713 (2d Cir. 2002)
  Supplies the operative retaliation burden-shifting template for Rehabilitation Act retaliation claims. The court quoted Treglia for the sequential burdens: once a prima facie case is assumed or shown, the employer must articulate a legitimate, non-retaliatory reason; then the plaintiff must produce evidence permitting a rational inference of pretext.
• Littlejohn v. City of N.Y., 795 F.3d 297 (2d Cir. 2015)
  Cited to confirm that § 1981 retaliation claims follow the same McDonnell Douglas burden-shifting framework. This alignment allowed the panel to analyze both federal retaliation theories in a single, unified pretext inquiry.
• Cifra v. Gen. Elec. Co., 252 F.3d 205 (2d Cir. 2001)
  Quoted (via Treglia) for the key pretext standard: the plaintiff must point to evidence sufficient for a rational factfinder to conclude the employer’s stated explanation is “merely a pretext for impermissible retaliation.” This is the decisive hurdle Baptiste failed to clear.
• LoSacco v. City of Middletown, 71 F.3d 88 (2d Cir. 1995)
  Applied twice to procedural forfeiture/abandonment. First, Baptiste did not brief challenges to claims dismissed earlier under Rule 12(b)(6), so those issues were deemed abandoned. Second, she did not challenge the dismissal without prejudice of the NYCHRL claim after the district court declined supplemental jurisdiction, so that argument was also abandoned.

3.2 Legal Reasoning

The court’s reasoning follows the canonical summary-judgment approach to retaliation claims: even crediting the nonmovant with all reasonable inferences, the plaintiff must still produce evidence that would allow a reasonable jury to find retaliation rather than the employer’s stated justification.

(a) Assumed prima facie case; decision turned on pretext.
The panel assumed Baptiste could make out the initial, minimal showing of retaliation. That assumption sharpened the dispute to the back end of McDonnell Douglas: whether the record permits an inference that the proffered reason (poor performance) was not the real reason.

(b) Employer’s legitimate reason was strongly supported by external investigative findings.
Defendants pointed to “ample evidence,” particularly two federal investigations by the Department of Education’s Office of Civil Rights (“OCR”), each concluding that Baptiste’s office did not timely or adequately investigate internal discrimination complaints. The court treated these findings as probative evidence of performance deficiencies—especially relevant given Baptiste’s role overseeing an office charged with compliance and complaint investigations.

(c) Plaintiff’s rebuttal failed to create a genuine dispute on pretext.
The panel addressed—and rejected—Baptiste’s principal pretext theories:

• No feedback / no contemporaneous documentation: Baptiste argued Boudreau never gave performance feedback and that Defendants lacked contemporaneous writings evidencing performance concerns. The court emphasized record admissions undermining this narrative—Baptiste acknowledged that Boudreau discussed OCR findings with her—supporting the inference that performance issues were communicated and real.
• Understaffing as a retaliatory setup: Baptiste contended any poor performance stemmed from Boudreau’s lack of support or understaffing. The court found the performance concerns predated Boudreau’s tenure: the first adverse OCR decision concerned conduct before his assumption of leadership (interim presidency in November 2016), and an internal review of 2015–16 complaint handling revealed incomplete reporting in multiple cases. This chronology weakened the causal narrative that Boudreau engineered poor performance as cover for retaliation.
• “Shifting explanations” for termination: Baptiste relied on union meeting minutes and an email sent after her firing, arguing they showed changing reasons. The panel agreed with the district court that—even assuming admissibility—these materials did not actually provide alternative reasons for termination. Without evidence of inconsistent explanations, she could not leverage the “shifting rationale” doctrine as circumstantial proof of pretext.

(d) Procedural narrowing through abandonment.
By applying LoSacco, the panel limited the appeal to the claims and rulings Baptiste actually briefed. This underscores a recurring appellate lesson: even potentially meritorious issues can be lost through inadequate briefing.

3.3 Impact

Although nonprecedential, the order signals several practical implications for Rehabilitation Act and § 1981 retaliation litigation in the Second Circuit:

• External investigations can be powerful performance evidence: Adverse findings by an agency such as OCR may substantially strengthen an employer’s “legitimate reason” showing and make it harder for plaintiffs to prove pretext—particularly when the employee’s core duties align with the subject of the findings (here, discrimination complaint processing).
• Chronology matters in “set up to fail” theories: Where performance problems predate the alleged retaliator’s tenure, courts may view “management starved me of resources” arguments as insufficient to show pretext without concrete evidence tying resource decisions to retaliatory motive.
• “Shifting explanations” requires actual alternative explanations: Post-termination communications that do not state a reason will not establish inconsistency. Plaintiffs must identify genuine, materially different employer explanations.
• Appellate abandonment is outcome-determinative: Failure to brief an issue can forfeit it, narrowing the appellate battlefield to the point that affirmance becomes likely.

4. Complex Concepts Simplified

• Summary judgment: A pretrial ruling for the moving party when no “genuine dispute” of material fact exists and the law entitles the movant to win. The judge does not decide which side is more believable; the question is whether a reasonable jury could find for the nonmovant on the evidence.
• De novo review: On appeal, the court reviews the summary-judgment decision fresh, without deferring to the district court’s legal conclusions.
• McDonnell Douglas burden-shifting: A three-step framework often used in discrimination/retaliation cases: (1) the plaintiff makes an initial (prima facie) showing; (2) the employer articulates a legitimate, non-retaliatory reason; (3) the plaintiff must show that reason is pretext—i.e., not the true reason.
• Prima facie case: The minimal initial showing needed to raise an inference of retaliation (often including protected activity, employer knowledge, adverse action, and a causal link).
• Pretext: Evidence that the employer’s stated reason is not the real reason and that retaliation is the true motive. It can be shown through inconsistencies, implausibilities, timing plus other proof, comparative evidence, or other circumstantial indicators.
• Supplemental jurisdiction: A federal court’s discretion to hear state or local claims related to federal claims. If federal claims are dismissed, the court often dismisses remaining state/local claims without prejudice so they may be refiled in state court.
• Abandonment on appeal: If an appellant does not raise and argue an issue in the appellate brief, the appellate court can treat it as waived/abandoned and will not decide it.

5. Conclusion

Baptiste v. City Univ. of N.Y. affirms that, under the Rehabilitation Act and § 1981, a plaintiff who reaches the pretext stage must offer evidence from which a reasonable jury could conclude retaliation—not poor performance—drove the termination. Here, OCR findings and other record evidence provided a strong, non-retaliatory performance rationale, and Baptiste’s proposed indicators of pretext (lack of feedback, alleged understaffing, and purportedly shifting explanations) did not create a triable issue. The order also highlights the decisive procedural role of issue abandonment on appeal.