1 16-3562 Jill S. Meyer, M.D. v. David J. Shulkin 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Fole y Square, in the City of New York, on the 11 th day of October, two thousand seventeen.
Present: D EBRA A NN L IVINGSTON , G ERARD E. L YNCH , D ENNY C HIN , Circuit Judges ,

_____________________________________ J ILL S. M EYER , M.D., Plaintiff-Appellant , v. 16-3562

D AVID J. S HULKIN , Secretary, Department of Veterans Affairs,
Defendant-Appellee

.

_____________________________________ For Plaintiff-Appellant: A LAN E. W OLIN , Wolin & Wolin, Jericho, New York. For Defendant-Appellee: B RIDGET M. R OHDE , Acting United States Attorney, V ARUNI N ELSON & J AMES R. C HO , Assistant United States Attorneys, Easter n District of New York, Brooklyn, New York.2 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 East ern 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’ familiarit y with the underlying facts, the procedural history of the cas e, and the issues on appeal. A. Background From December 1994 to February 2004, Meyer wo rked as a psychiatrist for the New Jersey Veterans’ Affairs Medical Cent er (the “New Jersey VA Center”). Meyer received many formal reviews during her employment there. Although they contained so me scattered praise, the reviews were mixed to negative, and regular ly commented on Meyer’s poor time management, documentation, and interpersonal skills. Two reports expressed c oncern that Meyer’s “interpersonal conflicts and di fficulties have . . . had significant adverse impact on treatment team efficiency.” J.A. 372–73, 374–75. Another repor t similarly noted that Meyer “[n]eed[ed] [r]eview and [p]ractice” in her ab ility to “[b]uild[] an atmosphere of trust by being trustworthy,” and “[p]rovid[e] support to [her] fellow employ ees 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 voluntar ily resigned from her position with the New Jersey VA Center. In January 2009, she applied for a psychi atrist position in the VA Medical Center in3 Syracuse, New York (“the Syracuse VA Center”). During her interview, she met with Dr. Helen MacGregor (“MacGregor”), the Chief of Psychiat ry, 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 Of ficial 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 “cont ingent upon a suitability determination that will be made after [Meyer] completed the application for employment and any related documents,” and after “a re view of [Meyer’s] references [a nd] 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 Ha yman, 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] O PF, [he] determined that the performance and interpersonal problems documented therein made [Meyer] unsuitable fo r employment at the Syracuse [VA Center]. Said another way, the empl oyment offer was retracted due to her previous VA work record.” J.A. 427. On February 24, 2009, Antinelli informed Meye r 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. Th e letter of retraction stated: “After carefully reviewing [your OPF], it has been determined that the performance and interpersonal problems4 documented therein make you unsuitable for empl oyment 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 perf ormance 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 ad ministrative law judge dismisse d Meyer’s claim, finding that Meyer had not carried her burden of demonstra ting 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 T itle VII lawsuit in the Eastern District of New York, naming then-Secretary of the Departme nt 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 retaliati on. On or about April 6, 2015, the defendant moved for summary judgment. Meyer opposed this moti on only as to her retaliation claim, and she abandoned her age and religious discrimination claims. The district court referred Me yer’s case to a magistrate judge. In a commendably clear and thorough Report & Recommenda tion (“R & R”), the magistrate judge recommended that the district court grant the defe ndant’s motion for summary judg ment. On September 30, 2016, the district court adopted the R & R in its entire ty, granted the defendant ’s motion for summary judgment, and dismissed Meyer’s case. The question for our review is whet her the district court erred in granting the defendant’s motion for summary judgment on Meye r’s retaliation claim.

1 Since then, Shineski has been replaced by David J. Shulkin, the current named defendant.5 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 ev idence 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 reasona ble 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 retali ation claims by using the th ree-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 prot ected 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 a dverse employment action.” Hicks , 593 F.3d at 164 (quoting Jute v. Hamilton Sundstrand Corp. , 420 F.3d 166, 173 (2d Cir. 2005)).6 “articulate a legitimate, non -retaliatory reason for the adverse employment action.” Id. (quoting
Jute , 420 F.3d at 173). If the defendan t does so, then “the presump tion of retaliatio n dissipates,” id. , and we move to step three. At step three, th e 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 he re because Meyer’s claims fail at step one. That is, even after viewing all of the admissible ev idence in Meyer’s favor, she still fails to carry her de minimis burden of showing that a rational finder of fact might conc lude 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 c ourt 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 pl aintiff 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, caus ation is a question of fact. See Redd v. New York Div. of Parole , 678 F.3d 166, 178 (2d Cir. 2012). Thus, a c ourt 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 ev idence stands, was unrelated to the defendant’s adverse employment action. See Fed. R. Civ. P. 56(a). In this ca se, then, summary judgment is appropriate if “no reasonable jury” could fi nd that Meyer’s EEO activity caused Antinelli to withdraw Meyer’s offer. See Jeffreys , 426 F.3d at 554.7 We agree with the district court that no reas onable 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 activ ity. But she offers no evidence to back up either of these claims. 3 Antinelli swore under penalty of pe rjury that he was not aware of Meyer’s EEO complaints. And the record contains a “true and correct c opy” 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 su ch a reference. In short, Meyer’s evidence consists solely of the “u nsubstantiated 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 fo r summary judgment, see id. ; see also Holcomb v. Iona Coll. , 521 F.3d 130, 137 (2d Cir. 2008) (“Even in the [Title VII] discri mination context, . . . a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment.”). On appeal, Meyer argues as follows: (1) Za valauskas and MacGregor knew about Meyer’s poor reviews at the New Jersey VA Center, a nd decided to recommend that she be hired nonetheless; (2) accordingly, “nothing that wa s contained in her OPF concerning her job performance would have been a surpri se”; and (3) thus, her EEO activity must have been mentioned in her OPF, since “[t]he only new fact that [Antinelli] coul d 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-rela ted 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.8 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 ma intain 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 receip t of the OPF was notice as to th e 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 summ ary 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