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22-2731-cv

Henvill v. Metropolitan Transportation Authority

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 6th day of November, two thousand twenty-three.

PRESENT: RAYMOND J. LOHIER, JR.,

BETH ROBINSON,

ALISON J. NATHAN,

Circuit Judges.

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WINSTON HENVILL,

Plaintiff-Appellant,

v. No. 22-2731-cv

METROPOLITAN TRANSPORTATION 

AUTHORITY,

Defendant-Appellee. *

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* The Clerk of Court is directed to amend the caption as set forth above.
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FOR APPELLANT: ALAN E. WOLIN, Wolin & Wolin, 

Jericho, NY

FOR APPELLEE: WILLIAM T. O’CONNELL, Goldberg 

Segalla LLP, White Plains, NY 

Appeal from a judgment of the United States District Court for the 

Southern District of New York (George B. Daniels, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the District Court is AFFIRMED.

Winston Henvill appeals from a September 28, 2022 judgment of the 

District Court granting summary judgment in favor of Henvill’s former 

employer, the Metropolitan Transportation Authority (MTA). Claiming 

retaliation and racial discrimination, Henvill, who is Black and was formerly 

employed as a police officer with the MTA, sued under Title VII of the Civil 

Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the 

New York City Human Rights Law (NYCHRL). We assume the parties’ 

familiarity with the underlying facts and the record of prior proceedings, to 

which we refer only as necessary to explain our decision to affirm.

In this appeal, we consider only Henvill’s claims that (1) the removal of his 

authority to issue summonses after he filed a complaint with the Equal 
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Employment Opportunity Commission (EEOC) constitutes unlawful retaliation, 

(2) the command discipline he received for accepting two simultaneous tours of 

overtime constitutes unlawful racial discrimination, and (3) his ultimate 

termination constitutes both unlawful retaliation and unlawful racial 

discrimination. 

To defeat summary judgment as to these claims, Henvill was required to 

“proffer admissible evidence that sets forth specific facts showing a genuinely 

disputed factual issue that is material under the applicable legal principles.” 

Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008)

(cleaned up). “It is appropriate for a district court ruling on summary judgment 

to consider only admissible evidence.” Nora Beverages, Inc. v. Perrier Grp. of Am., 

Inc., 269 F.3d 114, 123 (2d Cir. 2001). The District Court dismissed all three 

claims as a matter of law because it concluded that Henvill failed to raise a 

genuine dispute of material fact as to any of them. Reviewing the District 

Court’s award of summary judgment de novo and construing the evidence in 

Henvill’s favor, see Summa v. Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013), we

agree.
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I. Removal of Authority to Issue Summonses

First, Henvill fails to show a causal connection between his protected 

activity (filing the EEOC complaint) and the MTA’s decision to strip him of the 

authority to issue summonses. Henvill’s Title VII and NYSHRL claims require a 

showing that the protected activity was a but-for cause of the adverse 

employment action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 

(2013). “[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff 

must show that she took an action opposing her employer’s discrimination, and 

that, as a result, the employer engaged in conduct that was reasonably likely to 

deter a person from engaging in such action.” Mihalik v. Credit Agricole 

Cheuvreux N. Am., Inc., 715 F.3d 102, 112 (2d Cir. 2013). 

Henvill relies almost entirely on the two-month gap between his EEOC 

complaint and the removal of his summons authority in March 2012 to argue that 

he has a triable claim of retaliation.1 But temporal proximity alone does not 

create a genuine dispute of material fact as to causation when, as here, there is 

1 Henvill also argues that he was told by an MTA Lieutenant that there was a “target on 

his back.” But this conversation took place before he filed his EEOC complaint and thus 

does not support Henvill’s claim that MTA retaliated against him for filing that 

complaint. 
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“an extensive period of progressive discipline” preceding the “filing of the EEOC 

charges.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)

(quotation marks omitted); see also Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 

847 (2d Cir. 2013). As the District Court detailed, Henvill violated a number of 

MTA rules related to the issuance of summonses prior to January 2012, when he 

filed his EEOC complaint. From 2008 through 2010, he was repeatedly 

investigated and disciplined or otherwise corrected by the MTA for failing to 

properly record and document the vehicle and traffic law summonses he issued. 

In 2009 he was issued a Notice of Intent to Discipline for his failure to record and 

document summonses, prohibited from issuing summonses without supervisory 

approval, and assigned to desk duty. Henvill’s infractions persisted into 2010, 

when the MTA demoted him for performing traffic stops without properly 

notifying the MTA Police Communications Unit and for improperly issuing 

moving violations. 

Henvill’s summons-related infractions and the resulting progressive 

disciplinary actions thus occurred well before he filed his complaint with the 

EEOC in January 2012. For this reason, we agree that Henvill’s retaliation 

claims under Title VII, the NYSHRL, and the NYCHRL arising from the removal 
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of his authority to issue summonses should be dismissed as a matter of law in 

light of the absence of admissible evidence that the removal was a result of his

EEOC complaint. 

II. Command Discipline

We next turn to Henvill’s racial discrimination claims arising from the 

command discipline he received for booking two simultaneous tours of 

overtime. Henvill failed to adduce any admissible evidence that he was treated 

less well than similarly situated comparators who belonged to a different racial 

group. In particular, Henvill failed to point to evidence based on his personal 

knowledge that the comparators he identified were not disciplined for engaging 

in similar conduct. See Shumway v. UPS, Inc., 118 F.3d 60, 64–65 (2d Cir. 1997)

(granting summary judgment to defendant where plaintiff “admits that in most 

of the [comparator] cases she cites she has no personal knowledge of the alleged 

violations but heard about them because they were ‘common knowledge’”). 

Henvill also fails to point to evidence that he and these comparators shared 

similar disciplinary histories.

It is true that under the burden-shifting framework applicable to Title VII 

and NYSHRL discrimination claims, if the plaintiff establishes a prima facie case 
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of discrimination, the burden shifts to the defendant to articulate some 

legitimate, non-discriminatory reason for its action, after which the plaintiff must 

show that the defendant’s reason was pretextual. See Vivenzio v. City of Syracuse, 

611 F.3d 98, 106 (2d Cir. 2010). Even assuming, however, that Henvill 

established a prima facie case of discrimination, he has not shown that the

MTA’s legitimate, non-discriminatory reason for the command discipline –

namely, Henvill’s two simultaneous tours of overtime – was pretextual. 

Although “[a] showing that similarly situated employees belonging to a different 

racial group received more favorable treatment” can be used to show pretext, 

Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000), as discussed above, 

Henvill has proffered no admissible evidence to that effect. 

For these reasons, we conclude that Henvill’s racial discrimination claims

under Title VII, the NYSHRL, and the NYCHRL pertaining to his command 

discipline were properly dismissed as a matter of law.

III. Termination

Finally, Henvill claims that the June 2013 Notice of Intent to Discipline and 

the decision to terminate him constitute unlawful retaliation and discrimination. 

In addition to the summons-related infractions discussed above, however, from 
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2011 to 2013 Henvill was disciplined for losing his memo book, abandoning his 

assigned training partner, showing up late to an overtime shift, and lying to 

MTA investigators about taking another officer’s memo book and locking it 

inside a gun locker. We therefore agree with the District Court’s decision to 

dismiss these claims as a matter of law, in particular because Henvill fails to 

identify any genuine dispute of material fact as to the MTA’s decision to 

terminate him based on his lies to MTA investigators — lies that also prompted

the June 2013 Notice of Intent to Discipline. 

Pointing to various comparators, Henvill nevertheless argues that the 

MTA’s explanation for the Notice of Intent to Discipline and his termination is a 

pretext for retaliation and racial discrimination. We are not persuaded. The 

comparators whom Henvill identifies did not lie to investigators or otherwise 

engage in a similar pattern of misconduct. Nor does Henvill point to admissible 

evidence that he and these comparators shared similar disciplinary histories. 

Finally, we reject Henvill’s argument that the District Court failed to 

sufficiently evaluate his claims under the NYCHRL, applying that law’s less 

exacting standards for assessing retaliation and race discrimination. The 

District Court correctly noted NYCHRL’s distinct standards for evaluating 
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claims of retaliation and race discrimination. Henvill v. Metropolitan Transp. 

Auth., No. 13 Civ. 7501, 2022 WL 4467338, at *4, *6 n.4 (S.D.N.Y. Sept. 26, 2022). 

The District Court expressly concluded that the distinction did not affect its 

resolution of Henvill’s NYCHRL claims. Id. at *6 & n.4. 

Accordingly, we agree with the District Court that there is no genuine 

dispute of material fact that prevented it from entering summary judgment in the 

MTA’s favor on Henvill’s Title VII, NYSHRL, and NYCHRL retaliation and 

discrimination claims.

We have considered Henvill’s remaining arguments and conclude that 

they are without merit. For the foregoing reasons, the judgment of the District 

Court is AFFIRMED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court