Jill S. Meyer, M.D. v. David J. Shulkin

16-3562
Jill S. Meyer, M.D. v. David J. Shulkin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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
11th day of October, two thousand seventeen.
Present:
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges,
_____________________________________
JILL S. MEYER, M.D.,
Plaintiff-Appellant,
v. 16-3562
DAVID J. SHULKIN, Secretary, Department of Veterans Affairs,
Defendant-Appellee.
_____________________________________
For Plaintiff-Appellant: ALAN E. WOLIN, Wolin & Wolin, Jericho, New
York.
For Defendant-Appellee: BRIDGET M. ROHDE, Acting United States Attorney,
VARUNI NELSON & JAMES R. CHO, Assistant United
States Attorneys, Eastern District of New York,
Brooklyn, New York.
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Appeal from a judgment of the United States District Court for the Eastern District of
New York (Irizarry, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Dr. Jill S. Meyer (“Meyer”) appeals from the September 30, 2016 order of the United
States District Court for the Eastern District of New York (Irizarry, C.J.), adopting the findings
of a July 28, 2016 Report and Recommendation (Tiscione, M.J.) and granting the defendant’s
motion for summary judgment. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
A. Background
From December 1994 to February 2004, Meyer worked as a psychiatrist for the New
Jersey Veterans’ Affairs Medical Center (the “New Jersey VA Center”). Meyer received many
formal reviews during her employment there. Although they contained some scattered praise, the
reviews were mixed to negative, and regularly commented on Meyer’s poor time management,
documentation, and interpersonal skills. Two reports expressed concern that Meyer’s
“interpersonal conflicts and difficulties have . . . had significant adverse impact on treatment
team efficiency.” J.A. 372–73, 374–75. Another report similarly noted that Meyer “[n]eed[ed]
[r]eview and [p]ractice” in her ability to “[b]uild[] an atmosphere of trust by being trustworthy,”
and “[p]rovid[e] support to [her] fellow employees in accomplishing [their] mission.” J.A. 128.
Meyer herself admitted during discovery that her evaluations at the New Jersey VA Center were
“poor” and “not very good.” J.A. 492, 493–94.
In February 2004, Meyer voluntarily resigned from her position with the New Jersey VA
Center. In January 2009, she applied for a psychiatrist position in the VA Medical Center in
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Syracuse, New York (“the Syracuse VA Center”). During her interview, she met with Dr. Helen
MacGregor (“MacGregor”), the Chief of Psychiatry, and Linda Zavalauskas (“Zavalauskas”), a
human resources representative. Meyer mentioned her admittedly “poor” evaluations from the
New Jersey VA Center in her discussion with MacGregor. Meyer recalls MacGregor responding
that it “wasn’t a big deal.” J.A. 456.
Shortly after the interview, MacGregor and the Syracuse VA Center staff recommended
Meyer for the vacant position. On January 29, 2009, the Syracuse VA Center asked the National
Personnel Records Center to send over Meyer’s Official Personnel Folder (“OPF”). On February
6, 2009, the Syracuse VA Center’s human resources manager, Mark Antinelli (“Antinelli”), sent
Meyer an offer letter. The letter explicitly noted that the offer was “contingent upon a suitability
determination that will be made after [Meyer] completed the application for employment and any
related documents,” and after “a review of [Meyer’s] references [and] credentials.” J.A. 113.
The Syracuse VA Center received Meyer’s OPF after Antinelli sent his letter. Antinelli
and another Syracuse VA employee, Dr. Judy Hayman, reviewed Meyer’s OPF. After doing so,
they both concluded that the offer letter should be retracted. Antinelli later explained in an
affidavit that “after [he] reviewed [Meyer’s] OPF, [he] determined that the performance and
interpersonal problems documented therein made [Meyer] unsuitable for employment at the
Syracuse [VA Center]. Said another way, the employment offer was retracted due to her previous
VA work record.” J.A. 427.
On February 24, 2009, Antinelli informed Meyer over the phone that he was retracting
the offer due to the “low satisfactory rating[s] on her proficiency reports.” J.A. 46. Antinelli sent
Meyer a formal retraction letter later that day. The letter of retraction stated: “After carefully
reviewing [your OPF], it has been determined that the performance and interpersonal problems
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documented therein make you unsuitable for employment with our Medical Center.” J.A. 381.
On June 3, 2009, Meyer filed a complaint of employment discrimination. She claimed
that Antinelli discriminated against her because of her age, religion, and national origin, and that
Antinelli rescinded her offer not because of her performance evaluations, but as an act of reprisal
for the numerous EEO complaints she filed during her employment at the New Jersey VA
Center. On March 16, 2012, an administrative law judge dismissed Meyer’s claim, finding that
Meyer had not carried her burden of demonstrating either discrimination or retaliation. Among
other things, the judge noted that Meyer failed to establish that Antinelli even knew about her
EEO activity when he decided to rescind the offer.
On November 12, 2012, Meyer filed the instant Title VII lawsuit in the Eastern District
of New York, naming then-Secretary of the Department of Veterans Affairs Eric K. Shineski as
the defendant.1 Like her EEO complaint, Meyer’s complaint here alleges discrimination on the
basis of age and religion, as well as retaliation. On or about April 6, 2015, the defendant moved
for summary judgment. Meyer opposed this motion only as to her retaliation claim, and she
abandoned her age and religious discrimination claims.
The district court referred Meyer’s case to a magistrate judge. In a commendably clear
and thorough Report & Recommendation (“R & R”), the magistrate judge recommended that the
district court grant the defendant’s motion for summary judgment. On September 30, 2016, the
district court adopted the R & R in its entirety, granted the defendant’s motion for summary
judgment, and dismissed Meyer’s case. The question for our review is whether the district court
erred in granting the defendant’s motion for summary judgment on Meyer’s retaliation claim.
1
Since then, Shineski has been replaced by David J. Shulkin, the current named defendant.
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B. Discussion
We review a district court’s grant of summary judgment de novo. McElwee v. Cty. of
Orange, 700 F.3d 635, 640 (2d Cir. 2012). In doing so, we “constru[e] the evidence in the light
most favorable to the nonmoving party and draw[] all reasonable inferences in [her] favor.” Id.Summary judgment is proper “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). “A
fact is ‘material’ . . . if it ‘might affect the outcome of the suit under the governing law.’”
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). And a dispute is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
Put another way, summary judgment is appropriate if, “even after drawing all inferences in the
light most favorable to [the plaintiff], no reasonable jury could have issued a verdict in [her]
favor.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005).
We analyze Title VII retaliation claims by using the three-step “burden-shifting
evidentiary framework” that the Supreme Court outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015). At step
one, the plaintiff must demonstrate “a prima facie case of retaliation.” Hicks v. Baines, 593 F.3d
159, 164 (2d Cir. 2010).2 If the plaintiff successfully establishes a prima facie case of retaliation,
then she has created a “presumption of retaliation” and we move to step two. Id. (quoting Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). At step two, the defendant must
2
To do so, she must establish: (1) participation in protected activity; (2) the defendant’s knowledge of the protected
activity; (3) an adverse employment action on behalf of the defendant; and (4) “a causal connection between the
protected activity and the adverse employment action.” Hicks, 593 F.3d at 164 (quoting Jute v. Hamilton Sundstrand
Corp., 420 F.3d 166, 173 (2d Cir. 2005)).
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“articulate a legitimate, non-retaliatory reason for the adverse employment action.” Id. (quoting
Jute, 420 F.3d at 173). If the defendant does so, then “the presumption of retaliation dissipates,”
id., and we move to step three. At step three, the plaintiff must demonstrate “that the desire to
retaliate was the but-for cause of the challenged employment action,” and if she fails to do so, her
claims are dismissed. See Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 70, 73 (2d Cir.
2015) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013)).
We affirm the grant of summary judgment here because Meyer’s claims fail at step one.
That is, even after viewing all of the admissible evidence in Meyer’s favor, she still fails to carry
her de minimis burden of showing that a rational finder of fact might conclude that her EEO
activity caused Antinelli to rescind her offer. See Hicks, 593 F.3d at 164 (quoting Jute, 420 F.3d at
173). Accordingly, the district court did not err in granting the defendant’s motion for summary
judgment.
Meyer failed to offer any evidence to show a causal link between her EEO activity and
Antinelli’s decision. A plaintiff can establish prima facie causation “directly”—such as “through
evidence of retaliatory animus directed against the plaintiff by the defendant”—or “indirectly,”
through circumstantial evidence. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d
Cir. 2000). Ultimately, however, causation is a question of fact. See Redd v. New York Div. of
Parole, 678 F.3d 166, 178 (2d Cir. 2012). Thus, a court may grant a defendant’s motion for
summary judgment in a Title VII retaliation suit only if there is “no genuine dispute” that the
plaintiff’s protected activity, so far as the evidence stands, was unrelated to the defendant’s
adverse employment action. See Fed. R. Civ. P. 56(a). In this case, then, summary judgment is
appropriate if “no reasonable jury” could find that Meyer’s EEO activity caused Antinelli to
withdraw Meyer’s offer. See Jeffreys, 426 F.3d at 554.
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We agree with the district court that no reasonable jury could find for Meyer on this issue.
No rational finder of fact could conclude that Antinelli even knew about Meyer’s EEO activity
when he decided to terminate her offer. Meyer’s sole pieces of evidence to support this claim are
that: (1) she believes that she saw references to her EEO activity when she reviewed her OPF in
preparing for litigation, and (2) she speculates that the chief of human resources at the New Jersey
VA Center informed Antinelli about her EEO activity. But she offers no evidence to back up
either of these claims.3 Antinelli swore under penalty of perjury that he was not aware of
Meyer’s EEO complaints. And the record contains a “true and correct copy” of Meyer’s entire
OPF. J.A. 51. Meyer does not point to a single page in this copy that references her EEO activity,
and after a thorough review we could not find such a reference. In short, Meyer’s evidence
consists solely of the “unsubstantiated speculation,” Jeffreys, 426 F.3d at 554 (quoting Fujitsu Ltd.
v. Fed. Exp. Corp., 247 F.3d 423, 428 (2d Cir. 2001)), and “conjecture,” id. (quoting Trans Sport,
Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992)), that we have held do not suffice
to defeat a motion for summary judgment, see id.; see also Holcomb v. Iona Coll., 521 F.3d 130,
137 (2d Cir. 2008) (“Even in the [Title VII] discrimination context, . . . a plaintiff must provide
more than conclusory allegations to resist a motion for summary judgment.”).
On appeal, Meyer argues as follows: (1) Zavalauskas and MacGregor knew about Meyer’s
poor reviews at the New Jersey VA Center, and decided to recommend that she be hired
nonetheless; (2) accordingly, “nothing that was contained in her OPF concerning her job
performance would have been a surprise”; and (3) thus, her EEO activity must have been
mentioned in her OPF, since “[t]he only new fact that [Antinelli] could have ascertained upon
3
On appeal, Meyer contends that “[t]he EEO complaints were part of [her] official file,” and that her
OPF contained correspondence on EEO-related matters. Pl.-Appellant’s Br. at 26. Her sole citations to the
record to support these assertions, however, are her own speculative statements in deposition testimony.
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receipt of the OPF was notice as to the extent of [her] prior EEO activity.” Pl.-Appellant’s Br. at
25. This argument, however, misses the mark. First, Meyer never disputes that the OPF in the
record is a “true and correct copy” of her OPF, and, as stated above, the OPF in the record
contains no reference to her EEO activity. Second, although Meyer did generally mention her
evaluations to Zavalauskas and MacGregor, there is no indication that she told them about the
poor marks she received for interpersonal skills. Antinelli specifically considered Meyer’s
interpersonal skills—a description of which was laid out in Meyer’s OPF—to be a critical factor
in his decision to rescind her offer. See J.A. 428 (“I do not believe [that Meyer] possesse[d] the
interpersonal skills necessary to establish and maintain effective work relationships. The ability
to establish and maintain effective work relationships are [sic] essential skills to successful
employment.”). Meyer is therefore incorrect in claiming that “[t]he only new fact that [Antinelli]
could have ascertained upon receipt of the OPF was notice as to the extent of [Meyer’s] prior EEO
activity,” Pl.-Appellant’s Br. at 25.
In sum, because Meyer fails to carry her burden of establishing prima facie retaliation, the
district court properly granted the defendant’s motion for summary judgment on her retaliation
claim. We have considered Meyer’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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