Brown v. CUNY: Temporal Proximity Alone Cannot Show Pretext Where Tenure Denial Follows Undisputed Noncompliance with a Settlement Agreement

Decision: U.S. Court of Appeals for the Second Circuit (Summary Order), Feb. 18, 2026, No. 25-694-cv.
Important procedural note: The panel issued a summary order, which “do[es] not have precedential effect,” but it reflects the Court’s application of settled Title VII retaliation principles to a tenure/settlement-agreement record.

1. Introduction

Parties. Plaintiff-Appellant Kim M. Brown, a Black woman and tenure-track professor at Medgar Evers College (part of the City University of New York), sued Defendant-Appellee City University of New York (“CUNY”) and others. On appeal, Brown challenged only the disposition of her Title VII retaliation claim against CUNY.

Background. After an initial denial of tenure in 2014, Brown pursued a grievance that ended in a January 2017 settlement agreement (the “Settlement Agreement”). The Settlement Agreement gave Brown an additional two-year period to meet “minimum requirements” tied to reappointment/tenure, including completing her Columbia doctoral degree, publishing two scholarly works, and submitting a progress report by September 30, 2018. The Agreement stated that “[f]ailure … to satisfy … any of the minimum requirements … shall be sufficient cause” not to recommend her for reappointment.

Key issues on appeal. Brown alleged that CUNY retaliated for her complaints of race- and sex-based discrimination by engineering teaching schedules that conflicted with her Columbia doctoral program, allegedly causing her to miss degree milestones and ultimately leading to tenure denial and termination. The core appellate question was whether Brown had evidence from which a reasonable jury could find retaliation under Title VII—particularly whether CUNY’s stated reason (failure to meet Settlement Agreement requirements) was a pretext for retaliation and whether retaliation was the “but-for” cause of the adverse action.

2. Summary of the Opinion

The Second Circuit affirmed summary judgment for CUNY. Even assuming Brown could satisfy the prima facie stage of the Title VII retaliation framework, the Court held that no rational jury could find CUNY’s explanation—Brown’s undisputed noncompliance with the Settlement Agreement’s doctoral-completion and reporting deadlines—was pretextual. The Court emphasized:

  • Brown did not complete her doctoral program and did not submit the required progress report by September 30, 2018.
  • Brown lacked evidence that any scheduling conflicts were intentionally created, much less created with retaliatory intent.
  • The record reflected CUNY’s efforts to accommodate scheduling concerns, undermining an inference of retaliatory sabotage.
  • There was a “mismatch” between the schedule-maker and those allegedly aware of Brown’s protected activity.
  • Temporal proximity alone cannot create a triable issue of fact as to pretext at summary judgment.

3. Analysis

3.1 Precedents Cited

A. Standards of review and summary judgment

  • Covington Specialty Ins. Co. v. Indian Lookout Country Club, Inc., 62 F.4th 748 (2d Cir. 2023) (per curiam): cited for de novo review of summary judgment.
  • Bey v. City of New York, 999 F.3d 157 (2d Cir. 2021): cited for the requirement to view evidence in the light most favorable to the nonmovant and draw reasonable inferences in her favor.
  • Fed. R. Civ. P. 56(a): the governing rule for summary judgment (“no genuine dispute as to any material fact”).

B. Retaliation framework and causation

  • McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): provides the burden-shifting framework applied to Title VII retaliation claims in the Second Circuit.
  • Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005): cited for applying McDonnell Douglas Corp. v. Green to Title VII retaliation.
  • Carr v. N.Y.C. Transit Auth., 76 F.4th 172 (2d Cir. 2023): cited for the four-element prima facie test for retaliation and for the defendant’s burden to produce a legitimate, non-retaliatory reason; also cited for the “but-for” requirement at the final stage.
  • Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013): anchors the “but-for” causation requirement for Title VII retaliation (i.e., retaliation must be the determining cause, not merely a motivating factor).

C. Temporal proximity and pretext at summary judgment

  • Abrams v. Dep't of Pub. Safety, 764 F.3d 244 (2d Cir. 2014): cited for the rule that temporal proximity alone cannot create an issue of fact on pretext at summary judgment.
  • El Sayed v. Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010), abrogated in part on other grounds by Nassar, 570 U.S. 338: likewise cited for the principle that temporal proximity, without more, is insufficient to show pretext.

D. Affirmance on alternate grounds

  • Cox v. Onondaga Cnty. Sheriff's Dep't, 760 F.3d 139 (2d Cir. 2014): supports the Court’s ability to “affirm on any ground with support in the record,” which mattered because the district court did not reach pretext.

E. Knowledge and causal connection evidence

  • Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111 (2d Cir. 2000): cited for the proposition that lack of knowledge by the relevant decisionmaker (or agent) is admissible evidence undermining causal connection.

F. Comparator evidence (“similarly situated” requirement)

  • Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d Cir. 1997): cited for the need to show comparators are similarly situated when alleging disparate treatment.
  • McGuinness v. Lincoln Hall, 263 F.3d 49 (2d Cir. 2001): cited for the standard that comparators must be in a “sufficiently similar” situation to support an inference of discrimination.

G. Waiver/abandonment principles

  • Jeffery v. City of New York, 113 F.4th 176 (2d Cir. 2024) (citing Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011)): cited to deem other claims abandoned because Brown’s appellate brief addressed only retaliation.
  • United States v. Mangano, 128 F.4th 442 (2d Cir. 2025): cited for waiver where a party concedes a point below and later attempts to argue contrary on appeal—used to reject Brown’s attempt to rely on pre-2017 events after conceding the Settlement Agreement barred them.

3.2 Legal Reasoning

(1) The Court bypassed the prima facie dispute and decided the case at pretext.
The district court had held Brown failed to show a prima facie causal connection (including concerns about temporal gaps). On appeal, the Second Circuit assumed arguendo Brown could establish a prima facie case but held she could not meet the ultimate burden: demonstrating that CUNY’s proffered reason was pretextual and that retaliation was the “but-for” cause.

(2) CUNY articulated a legitimate, non-retaliatory reason grounded in an enforceable process document.
CUNY’s reason was straightforward and documentary: Brown failed to satisfy core Settlement Agreement requirements—completion of the Ed.D. and submission of a progress report by September 30, 2018—terms that explicitly authorized non-recommendation for reappointment/tenure upon “failure … in any respect.”

(3) Brown’s evidence did not support an inference of retaliatory sabotage.
Even crediting Brown’s theory that scheduling conflicts interfered with doctoral progress, the Court found the record lacking on intent and mechanism:

  • No evidence the conflicts were “intentionally created.” The Court emphasized Brown offered no proof that CUNY deliberately engineered conflicts to derail her Columbia program.
  • Affirmative accommodation evidence. The record showed CUNY addressed conflicts quickly (e.g., spring 2017 conflict resolved within days and before it materialized) and reassigned a Thursday evening class in fall 2017. These facts undermined an inference of retaliation.
  • Decisionmaker knowledge mismatch. Brown testified that her schedule was set by Professor Randy Robotham, but her complaints went to others (HR, Dean Rolle, President/Provost), and there was no evidence Robotham knew of the protected activity. Under Gordon v. N.Y.C. Bd. of Educ., that absence of knowledge is probative against causation.
  • Temporal proximity alone cannot show pretext. Relying on Abrams v. Dep't of Pub. Safety and El Sayed v. Hilton Hotels Corp., the Court held timing—without additional indicia of retaliatory motive—cannot defeat summary judgment at the pretext stage.

(4) Comparator assertions were too conclusory.
Brown’s claim that she was treated less favorably than other tenured faculty failed for lack of evidentiary detail about comparator qualifications and circumstances, as required by Shumway v. United Parcel Serv., Inc. and McGuinness v. Lincoln Hall.

(5) The Court enforced waiver limits on expanding the factual window.
The panel noted that Brown waived reliance on pre-2017 events by conceding below that the Settlement Agreement barred such reliance, citing United States v. Mangano. Even if considered, the Court found no pre-2017 evidence that could reasonably link protected activity to the later scheduling issues and tenure decision.

3.3 Impact

  • Retaliation claims tethered to settlement-performance criteria face a heightened practical hurdle. Where an employer’s adverse action is anchored in undisputed noncompliance with a settlement agreement’s explicit requirements, a plaintiff must marshal concrete evidence that the employer intentionally manipulated conditions to cause the noncompliance—and that retaliation was the “but-for” cause of the adverse action.
  • Pretext requires more than “suspicious timing.” The decision reinforces a well-established Second Circuit evidentiary line: temporal proximity may help at the prima facie stage, but it cannot, by itself, create a jury issue on pretext at summary judgment.
  • Organizational decisionmaking structure matters. The “knowledge mismatch” discussion is a roadmap for litigants: plaintiffs must connect protected activity to the relevant actor(s) who caused the challenged action; defendants can counter with evidence that the operative decisionmaker lacked knowledge.
  • Comparator proof must be concrete. General allegations that “others were treated better” will not survive summary judgment without evidence that those others were similarly situated in relevant respects.
  • Appellate discipline: abandonment and waiver. The order highlights two recurring appellate pitfalls—abandoning claims by not briefing them (Jeffery v. City of New York/Jackler v. Byrne), and waiving arguments by conceding points below (United States v. Mangano).

4. Complex Concepts Simplified

  • Summary judgment (Fed. R. Civ. P. 56): A case can be decided without trial when, even viewing facts in the plaintiff’s favor, no reasonable jury could rule for the plaintiff on a legally required element.
  • Protected activity: Conduct Title VII protects from retaliation—such as complaining about race or sex discrimination.
  • Materially adverse action: An employer action serious enough that it might deter a reasonable worker from complaining (e.g., denial of tenure/termination).
  • McDonnell Douglas burden-shifting: A three-step structure: (1) plaintiff shows a minimal “prima facie” case; (2) employer gives a legitimate reason; (3) plaintiff proves that reason is a cover (pretext) and that retaliation actually caused the action.
  • Pretext: Proof the employer’s stated reason is not the real reason (e.g., it is false, inconsistent, selectively enforced, or contradicted by other evidence).
  • But-for causation (Nassar): The plaintiff must show the adverse action would not have happened but for retaliatory intent—not merely that retaliation played some role.
  • Temporal proximity: Close timing between complaint and adverse action can suggest causation, but (as emphasized here) it generally cannot alone prove pretext at summary judgment.
  • Similarly situated comparators: Other employees used for comparison must be similar in relevant ways (role, expectations, circumstances) to support an inference of unlawful motive.
  • Waiver/abandonment on appeal: Claims not argued in the appellate brief are typically treated as abandoned; arguments conceded below are generally waived.

5. Conclusion

Brown v. CUNY affirms that a Title VII retaliation plaintiff cannot reach a jury on pretext with timing alone, especially where the employer’s adverse action is supported by undisputed failure to meet explicit settlement-agreement conditions. The decision also underscores the importance of connecting protected activity to the actual decisionmaker(s), producing concrete comparator evidence when alleging disparate treatment, and preserving arguments through consistent positions in the district court and on appeal.