Vogel v. CA, Inc. , 662 F. App'x 72 ( 2016 )

14-3723(L)
Vogel v. CA, Inc.
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 TO 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
25th day of October, two thousand sixteen.
Present:
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
_____________________________________
HOWARD VOGEL,
Plaintiff-Appellant,
v. Nos. 14-3723, 15-3797
CA, INC.,
Defendant-Appellee.
_____________________________________
For Plaintiff-Appellant: MEGAN L. PILTZ, Sabatini & Associates, LLC,
Newington, Connecticut
For Defendant-Appellee: HOLLY L. CINI, Jackson Lewis P.C., Hartford,
Connecticut
*
Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting
by designation.
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UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part
and VACATED and REMANDED in part.
In this consolidated appeal, Plaintiff-Appellant Howard Vogel appeals from two
judgments of the United States District Court for the District of Connecticut (Bryant, J.), dated
September 8, 2014 and November 23, 2015, granting summary judgment in favor of
Defendant-Appellee CA, Inc. (“CA”) on all of Vogel’s claims. Vogel asserted claims for
employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2, 2000e-3, and analogous state law claims under the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60, et seq. We assume the
parties’ familiarity with the underlying facts, the procedural history, and the issues presented for
review, elaborating only as necessary.
In 2005, Vogel began working for CA, a company that sells computer software and
software support services. In late 2009, he joined a new team within CA, the India Service
Provider team. On this team, each of four U.S.-based Account Directors (of which Vogel was
one) was matched with an India-based CA counterpart, and each U.S.-based team was matched
with an India-based team to work with an India service provider. The team’s founder, Dennis
Kozak, recruited Vogel to the team. In January 2010, Steve Perlman took over management of
the team. In February, Vogel reported to Human Resources that he believed his role on the
team was being defined in part by his race. He testified in his deposition that for the rest of his
time on the team, he experienced harsh treatment from his supervisor Perlman. Throughout
2010, Vogel did not meet his sales quotas. In fact, he failed to make a single sale that qualified
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toward his sales quotas. In December 2010, CA fired Vogel, citing his failure to meet
performance metrics as the reason for his termination.
Vogel sued in federal court, alleging he had been discriminated against on the basis of his
race and national origin, and retaliated against for complaining about that discrimination. The
district court granted summary judgment to CA on Vogel’s Title VII claims, and declined to
exercise supplemental jurisdiction over his state law claims. Vogel then filed his CFEPA
claims in state court, and CA removed that lawsuit to federal court. The district court then
granted summary judgment in favor of CA on Vogel’s state law claims for substantially the same
reasons it had done so on Vogel’s federal claims. Vogel timely appealed.
I. Discussion
We review the district court’s grant of summary judgment de novo, considering the
evidence in the light most favorable to the non-moving party and drawing all inferences in his
favor. Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam). All of
Vogel’s claims are governed by the three-step burden-shifting framework outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Kirkland, 760 F.3d at 225; Summa v. Hofstra
Univ., 708 F.3d 115, 125 (2d Cir. 2013); Craine v. Trinity Coll., 791 A.2d 518, 530–31, 531 n.6
(Conn. 2002). “Once an employee makes a prima facie case of either discrimination or
retaliation, the burden shifts to the employer to give a legitimate, non-discriminatory reason for
its actions. If the employer does so, the burden then shifts back to the plaintiff to show that the
employer’s explanation is a pretext for . . . discrimination or retaliation.” Kirkland, 760 F.3d at
225 (citations omitted).
As to Vogel’s claims of race and national origin discrimination, the district court held
that Vogel had not established a prima facie case because he had not adduced evidence from
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which a reasonable juror could conclude that any adverse employment action taken against
Vogel occurred under circumstances giving rise to an inference of discrimination.1 We agree.
Vogel contends that a comment made by Kozak that “Indians would rather deal with Indians”
suggests discriminatory intent. However, this comment was made shortly before Kozak
recruited Vogel to work on the India Service Provider team, undercutting any inference of
discriminatory intent, and was made by Kozak, not by Perlman, who was the individual
responsible for the adverse employment actions of which Vogel complains. See Tomassi v.
Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (“[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
motivated by discrimination.”), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009). Vogel next relies on a comment allegedly made by Perlman that “Vogel
did not work well and play well with the guys in India,” but this remark also does not support an
inference of discrimination, given that it is undisputed that Vogel’s working relationship with the
members of his team based in India was tense. Finally, Vogel points to the transfer of some of
his duties and projects to the India-based team as evidence of discriminatory intent, but he
adduced no evidence indicating this shift was motivated by race or national origin—particularly
where, as here, there is no evidence that Vogel’s white, non-Indian colleagues also had their
duties similarly shifted. Cf. Leibowitz v. Cornell Univ., 584 F.3d 487, 503 (2d Cir. 2009)
(holding inference of discriminatory intent could be drawn where plaintiff and several other
women over fifty were laid off, and plaintiff’s responsibilities were transferred to male employees,
1
To establish a prima facie case of race or national origin discrimination, a plaintiff must put forth
evidence that “(1) he belongs to a protected group; (2) he was qualified for his position; (3) his employer
took an adverse action against him; and (4) the adverse action occurred in circumstances giving rise to an
inference of . . . discrimination.” Kirkland, 760 F.3d at 225.
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and she was not considered for open positions), superseded by statute on other grounds. The
district court correctly held that Vogel had not sustained even the de minimis burden of
establishing a prima facie case of race or national origin discrimination under either Title VII or
the CFEPA.
Vogel’s retaliation claims present a different issue. To establish a prima facie case of
retaliation, a plaintiff must put forth evidence that (1) he engaged in protected activity (such as
complaining about discrimination); (2) his employer knew about it; (3) his employer took adverse
action against him; and (4) there is a causal connection between his protected activity and the
adverse employment action. Summa, 708 F.3d at 125. The central issue on appeal is whether
Vogel established an adverse employment action. For the purposes of a retaliation claim, an
adverse employment action must be “materially adverse,” that is, it must be “harmful to the point
that [it] could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). “[N]ormally petty slights, minor annoyances,
and simple lack of good manners will not create such deterrence.” White, 548 U.S. at 68. The
context in which the claimed adverse employment action occurs matters, and “the alleged acts of
retaliation need to be considered both separately and in the aggregate, as even minor acts of
retaliation can be sufficiently ‘substantial in gross’ as to be actionable.” Hicks, 593 F.3d at 165.
Discussing Vogel’s Title VII retaliation claim, the district court observed that “[a]n
adverse employment action is a ‘materially adverse change in the terms and conditions of
employment.’” J.A. 357 (quoting Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008))
(emphasis omitted). For a retaliation claim, however, “the retaliatory act [need not] bear on the
terms or conditions of employment,” Hicks, 593 F.3d at 169, so long as “the employer’s actions
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were harmful to the point that they could well dissuade a reasonable worker from making or
supporting a charge of discrimination,” id. at 169 (quoting White, 548 U.S. at 57) (internal
quotation marks omitted) (alteration omitted). The district court thus erred by examining only
whether Vogel adduced sufficient evidence for a reasonable jury to conclude that he experienced a
material shift in his employment duties or termination as a result of his protected activity.
Based on Vogel’s testimony, a reasonable jury could conclude that after Vogel reported to
Human Resources that he suspected he was being discriminated against on the basis of race,
Perlman singled him out for hostile treatment. Vogel testified that from the time of his complaint
until his termination, Perlman was persistently hostile toward him on team conference calls, made
jokes about him in front of his colleagues, and removed him from meetings. He also testified that
during a discussion about his performance review in April 2010, Perlman yelled at him, called him
names, told him that his actual performance was irrelevant, and said he did not want Vogel on his
team. (Perlman allegedly again said he did not want Vogel on his team during a call with Human
Resources a few months later.) For the purpose of his retaliation claims, Vogel’s testimony
concerning Perlman’s treatment of him (particularly in light of both Vogel’s allegation that
Perlman repeatedly stated Vogel was not wanted on Perlman’s team and Vogel’s eventual
termination) was sufficient to support a prima facie case that Vogel was subjected to adverse
employment action. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 26–27
(2d Cir. 2012).
The district court held that Vogel’s retaliation claims also failed because he could not
establish that his complaint caused his termination, and even if he had, he had not overcome
CA’s legitimate, nonretaliatory motive for terminating Vogel (namely, his poor performance).
As to causation, Vogel testified that Perlman’s treatment began shortly after Vogel’s complaint
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to Human Resources, and close temporal proximity is enough to establish causation at the prima
facie stage. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013). Given the
district court’s legal error as to adverse employment action in the retaliation context, we decline
to address the balance of the McDonnell Douglas analysis in the first instance, and conclude that
Vogel established a prima facie case without reaching the question whether he adduced sufficient
evidence to support a reasonable jury verdict as to his retaliation claims.
II. Conclusion
We have considered Vogel’s remaining arguments and find them to be without merit.
We AFFIRM the judgment of the district court as to Vogel’s discrimination claims, and we
VACATE and REMAND as to Vogel’s retaliation claims, brought pursuant to both Title VII
and the CFEPA, for further proceedings consistent with this summary order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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