Cunningham v. New York State Department of Labor ( 2011 )

10-2163-cv
Cunningham v. N.Y. State Dept. of Labor, et. al.
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 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
of May, two thousand eleven.
Present: JON O. NEWMAN,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
________________________________________________
MICHAEL CUNNINGHAM,
Plaintiff-Appellant,
v. No. 10-2163-cv
NEW YORK STATE DEPARTMENT OF LABOR,
LINDA ANGELLO, MARY HINES, and PATRICIA
RHODES-HOOVER,
Defendants-Appellees.
________________________________________________
FOR APPELLANT: KENNETH G. VARLEY, Donahue, Sabo, Varley & Huttner, LLP,
Albany, NY.
FOR APPELLEES: ANDREW B. AYERS, Assistant Solicitor General (Barbara D.
Underwood, Solicitor General, and Andrea Oser, Deputy Solicitor
General, of counsel) for Eric T. Schneiderman, Attorney General
for the State of New York, Albany, NY.
________________________________________________
Appeal from the United States District Court for the Northern District of New York
(Hurd, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED, that the judgment of the District Court be and hereby is AFFIRMED.
Plaintiff Michael Cunningham appeals from a final judgment entered by the district court
(Hurd, J.), granting summary judgment in favor of New York State Department of Labor
(“NYSDOL”), a former commissioner of NYSDOL, Linda Angello, a former Deputy
Commissioner for Administration, Mary Hines, and a former senior attorney in the General
Counsel’s office, Patricia Rhodes-Hoover (collectively, “defendants”). Cunningham filed suit in
2005 asserting claims against: (1) NYSDOL for unlawful discrimination based on gender and
race, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq; (2) all of the defendants for unlawful
discrimination based on gender and race and retaliation in violation of the New York State
Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 et seq.; and (3) Angello, Hines, and
Rhodes-Hoover1 for deprivation of equal protection, due process, and First Amendment
retaliation in violation of 42 U.S.C. § 1983 (“Section 1983"). On the initial appeal, this Court
affirmed the district court’s original grant of summary judgment on the discrimination claims,
but remanded Cunningham’s Title VII and First Amendment retaliation claims because the
district court did not distinguish between the “adverse employment action” standards specific to
each claim. See Cunningham v. N.Y. State Dep’t. of Labor, 326 F. App’x 617, 620-21 (2d. Cir.
2009) (unpublished summary order). Cunningham’s present appeal is from the district court’s
1
Rhodes-Hoover was a senior attorney in the NYSDOL’s Counsel office at the time
Cunningham filed suit. She is not mentioned in Cunningham’s brief to this Court, and according
to the NYSDOL’s brief, even though Rhodes-Hoover is a named defendant, Cunningham “no
longer alleges that she was involved in any wrongdoing.”
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grant of summary judgment following remand. We assume the parties’ familiarity with the
additional relevant facts and procedural history of the case.
We review de novo an appeal from an order granting summary judgment, “resolving all
ambiguities and drawing all permissible factual inferences in favor of the party against whom
summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal
quotation marks omitted). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). For summary judgment purposes, a “genuine issue” exists where
the evidence is such that a reasonable jury could decide in the non-moving party’s favor.
Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000).
I. Title VII Retaliation
Cunningham’s Title VII retaliation claim is governed by the three-step burden shifting
analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this familiar
framework, the plaintiff bears the initial burden of proving a prima facie case of retaliation by
showing: (1) he participated in a protected activity; (2) he suffered an adverse employment
action; and (3) a causal connection exists between his engaging in the protected activity and the
adverse employment action. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010). After a prima facie case is made, the burden shifts to the employer to articulate a
legitimate, non-retaliatory reason for the adverse employment action, which, if proffered, places
the burden on the plaintiff to demonstrate that the proffered reason is a pretext for unlawful
retaliation. See McDonnell Douglas Corp., 411 U.S. at 802-04.
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Even assuming arguendo that Cunningham could produce sufficient evidence to establish
a prima facie case of retaliation under Title VII, we hold that Cunningham has failed to offer
evidence from which a reasonable jury could infer that NYSDOL’s legitimate, non-retaliatory
reason for the alleged adverse employment action—e.g., docking Cunningham two hours of pay
following an investigation which revealed he did not in fact work for those two hours—was a
pretext for retaliation. Thus, because NYSDOL advances a legitimate, non-retaliatory reason for
Cunningham’s docked pay and his other allegations and because Cunningham offers nothing
more than his own conclusory allegations to challenge this reason or meet his ultimate burden of
proving retaliation, we affirm the district court’s grant of summary judgment on this claim. See
D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (holding that party opposing
summary judgment “may not rely on mere conclusory allegations nor speculation, but instead
must offer some hard evidence showing that its version of the events is not wholly fanciful”).
II. First Amendment Retaliation
To establish a First Amendment claim of retaliation, a public employee must show that
“(1) his speech addressed a matter of public concern; (2) he suffered an adverse employment
action; and (3) a causal connection between the speech and the adverse employment action.”
Singh v. City of New York, 524 F.3d 361, 372 (2d Cir. 2008).
Cunningham’s First Amendment claim is unavailing. He submits that NYSDOL docked
him two hours of pay for complaining to the press about Hines’ e-mail inviting NYSDOL
employees to a prayer breakfast in New York City. “Even if the plaintiff demonstrates [the three
factors supporting a First Amendment retaliation claim], the defendant can still prevail on a
motion for summary judgment if it can show that it would have taken the same adverse
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employment action ‘even in the absence of the protected conduct.’” Cotarelo v. Vill. of Sleepy
Hollow Police Dep’t, 460 F.3d 247, 251-52 (2d Cir. 2006) (quoting Blum v. Schlegel, 18 F.3d
1005, 1010 (2d Cir. 1994)). Assuming, without deciding, that Cunningham engaged in protected
conduct, we conclude that Cunningham has failed to offer evidence from which a reasonable jury
could infer that NYSDOL’s evidence that it would have docked him two hours of pay “even in
the absence of the protected conduct” was a pretext for retaliation. Thus, the district court
properly granted summary judgment on this claim.
III. Conclusion
We have considered Cunningham’s other arguments on appeal and find them to be
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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