1 17-1122 Shaw v. McDonald 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 (W ITH THE NOTATION A 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 16 th day of March, two thousand eighteen.
PRESENT: ROBERT A. KATZMANN, Chief Judge, PIERRE N. LEVAL, Circuit Judge, RICHARD M. BERMAN,* District Judge.

_____________________________________ Kenneth Daniel Shaw, Plaintiff-Appellant , v. 17-1122 Robert A. McDonald, Secretary of the Department of Veterans Affairs, Acting Director Mara Davis, EMS Chief Terry Vogt, Nurse Manager Eilleen Hughes, United States Department of Veterans Affairs, Forewoman Lawanche Thomas, Defendants-Appellees ,

* Judge Richard M. Berman, of the United States Di strict Court for the Southern District of New York, sitting by designation.2 Merit Systems Protection Board, New York Office, Judge Maureen Briody, Defendants

.

_____________________________________ FOR PLAINTIFF-APPELLANT: Kenneth Shaw, pro se , Poughkeepsie, NY.
FOR DEFENDANTS-APPELLEES: Peter Aronoff, Christopher Connolly, Assistant United States Attorneys, of Counsel, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New York (Román, J. ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Kenneth Shaw, proceeding pro se , appeals from the district court’s grant of motions to dismiss and for summary judgment in favor of his employer, the Department of Veterans Affairs (the “VA”). Shaw sued th e VA for disparate treatm ent and retaliation under Title VII of the Civil Right s Act of 1964, 42 U.S.C. § 2000e et seq. , claiming that he was fired because he is Muslim and in retaliation for his filing equal employme nt opportunity (“EEO”) complaints. Shaw also challenged the determination of the Merit Systems Protection Board (“MSPB” or the “Board”), under 5 U.S.C. § 7703, th at Shaw had verbally abused a patient (the “non-discrimination claim”). The district court dismissed Shaw’s Title VII claims because he failed to plausibly allege an in ference of either discrimination or retaliation. In addition, the district court granted summary judgment to the VA on the non-discrimination claim and held that the Board’s determination was supported by substa ntial evidence. We assume the parties’3 familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. The district court correctly granted the VA’s motion to dismiss Shaw’s Title VII claims. “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner , Inc. , 282 F.3d 147, 152 (2d Cir. 2002). In doing so, we will not “credit conclusory allegations or legal conclusions couched as factual allegations.” Nielsen v. Rabin , 746 F.3d 58, 62 (2d Cir. 2014) (internal quotation marks omitted). For a Title VII disparate treatment claim to su rvive a motion to dismiss, “a plaintiff must plausibly allege that (1) the em ployer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motiva ting factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 87 (2d Cir. 2015). Our Court generally looks to four factors to determine whether a remark made in the workplace is probative of discriminatory motive: “(1) who made the remark (i.e., a decision -maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at i ssue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).” Henry v. Wyeth Pharm., Inc. , 616 F.3d 134, 149 (2d Cir. 2010). The district court properly determined that Sh aw’s disparate treatment claim failed because Shaw did not plausibly allege that his religion was a motivating factor for his termination. Although Shaw alleges that co-workers made statem ents that a reasonable fact-finder could view as discriminatory, he has failed to allege that thes e co-workers played any role in the VA’s decision to fire him or that their remarks were made near the time that he was fired. Moreover, Shaw has4 failed to provide any information about whether an employee whom Shaw alleged was not fired for using abusive language was similarly situated to him. See Graham v. Long Island R.R. , 230 F.3d 34, 40 (2d Cir. 2000) (finding that a “simila rly situated” comparator requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases, including acts of comparable seriousness). The district court likewise correctly dismissed Shaw’s retaliation clai m. For a retaliation claim to survive a motion to dismiss, a “plain tiff must plausibly alle ge that: (1) defendants discriminated—or took an adverse employment ac tion—against him, (2) ‘because’ he has opposed any unlawful employment practice.” Vega , 801 F.3d at 90 (quoting 42 U.S.C. § 2000e–3(a))

. Retaliation claims must also sati sfy a “but-for” causation standard. Id. at 90-91 (citing Univ. of Texas Sw. Med. Ctr. V. Nassar , 133 S. Ct. 2517, 2533 (2013)). Shaw has failed to plead the requisite causal connection be tween his EEO complaints and his termination. Although Shaw disputes the language that he used in an altercation with a patient, he admits on appeal that he told the patient to “calm the F down.” Appellant’s Br . at 19. It is further undisputed that the VA prohibits its employees from engaging in verbal abuse. Given the nearly 12-month gap between the time of his EEO complaint and his firing, and hi s admission to using profanity toward a patient, Shaw has failed to plausibly allege that his EEO activity was a “but-for” cause of this termination. The district court lastly properly gran ted summary judgment to the VA on the nondiscrimination claim. “[We] set aside actions of the Merit Systems Protection Board unsupported by substantial evidence,” and determine “ whether an action of the Board is in accordance with law.” Borsari v. F.A.A. , 699 F.2d 106, 109 (2d Cir. 1983). Witness testimony, together with Shaw’s own admission that he directed profane language at a patient, constitute substantial evidence in support of the Board’s decision sustaining the charge of verbal abuse. Because the5 VA had in place a policy against verbal abuse, and because the VA reasonably determined that abusive conduct by staff interferes with the provis ion of quality healthcare , we conclude that the Board’s determination and sanction were reas onable, supported by the record, and were not arbitrary, capricious, or an abuse of discretion. The Board acted w ithin its discretion in mitigating Shaw’s penalty from termination to a 30-day susp ension. We accordingly affirm for substantially the reasons stated by the district cour t in its thorough March 16, 2017 decision. We have considered all of Shaw’s argument s and have found in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court