21

- 2569 Gonzalez v. NYU Langone Hospitals



## 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 (WI TH 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 2 n d da y of S e p t e m b e r , two thousand twenty

- two. 3 4 PRESENT: 5 ROSEMARY S. POOLER , 6 ROBERT D. SACK, 7 MICHAEL H. PARK , 8 Circuit Judges. 9

_________________________ ____________ 10 11 AIDA GONZALEZ, 12 13 Plaintiff

- Appellant, 14 15

v. 21

- 2569 16 17 NYU LANGONE HOSPITALS, 18 19 Defendant

- Appellee. * 20

_____________________________________ 21 22 F OR PLAINTIFF

- APPELLANT: Kareem El

- Din Abdo, Law Office of Kareem 23 Abdo, New York, NY. 24 25 F OR DEFENDANT

- APPELLEE: William Cusack III, Ogletree, Deakins, Nash, 26 Smoak & Stewart, P.C., New York, NY

. 27

* The Clerk of Court is respectfully directed to amend the caption accordingly.2 Appeal from a judgment of the United States District Court for the Southern District of 1
New York (Vyskocil
, J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court is AFFIRMED

. 4
Aida Gonzalez was a long

- time employee of NYU Langone Hospitals (“NYULH”) who 5
worked as a dietary aide. Between 2010 and 2017, Gonzal ez had several performance issues, 6
including failure to follow proper clocking in and out procedures and “ no call no shows. ” 7

Gonzalez’s NYULH supervisors repeatedly warned Gonzalez that her failure to correct these 8
performance issues could result in disci plinary action as serious as termination. NYULH finally 9
terminated Gonzalez on February 7, 2017, citing a no call no show three weeks earlier, her alleged 10
dishonestly about her supervisor’s approval of a time off request, and a final warning she had 11

recei ved in October 2016 for another no call no show. Gonzalez sued NYULH for retaliation 12

under Title VII of the Civil Rights Act of 1964 alleging that her termination was retaliation for 13
assisting a fellow NYULH employee, Aura Troche, to bring a lawsuit again st NYULH by 14
providing translation services for Troche at Troche's attorney’s office beginning on October 18, 15
2016. NYULH moved for summary judgment, which the district court granted because it 16
determined that Gonzalez failed to establish a prima facie cas e of retaliation by failing to proffer 17
evidence that her termination was causally connected to her protected activity of helping Troche. 18
Gonzalez appealed. We assume the parties’ familiarity with the underlying facts, procedural 19
history, and issues on ap peal. 20

We review the entry of summary judgment de novo , “construing the evidence in the light 21
most favorable to the nonmoving party and drawing all reasonable inferences in [the nonmoving 22
party’s] favor.” McElwee v. Cnty. of Orange , 700 F.3d 635, 640 (2d Cir. 2012). Title VII prohibits 233 employers from retali ating against employees for assisting other employees in opposing 1
discriminatory employment practices. See 42 U.S.C. § 2000e

– 3(a). 2

In order to show a prima facie case of retaliation in response to a motion for summary 3 judgment, a plaintiff must submit s ufficient admissible evidence to allow a trier of fact to 4 find: (i) conduct by the plaintiff that is protected activity under Title VII; (ii) of which the 5 employer was aware; (iii) followed by an adverse employment action of a nature that would 6 deter a rea sonable employee from making or supporting a discrimination claim; (iv) that 7 was causally connected to the protected activity. 8 9 Cox v. Onondaga Cnty. Sheriff ’ s Dep ’ t , 760 F.3d 139, 145 (2d Cir. 2014) (citation omitted)

. There 10
are two ways in which a plain tiff can demonstrate a causal connection: “indirectly, by showing 11
that the protected activity was followed closely by discriminatory treatment, or through other 12
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar 13

conduct ,” or “ directly, through evidence of retaliatory animus directed against the plaintiff by the 14

defendant.” Littlejohn v. City of New York , 795 F.3d 297, 319 (2d Cir. 2015) (quoting Gordon v. 15

N.Y.C. Bd. of Educ. , 232 F.3d 111, 117 (2d Cir. 2000))

. A lthough “[t] he temporal proximity of 16
events may give rise to an inference of retaliation for the purposes of establishing a prima facie 17

case of retaliation under Title VII ,” El Sayed v. Hilton Hotels Corp. , 627 F.3d 931, 933 (2d Cir. 18
2010), “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions 19
began well before the plaintiff had ever engaged in any protected activity, an inference of 20

retaliation does not arise,” Slattery v. Swiss Reinsurance Am. Corp. , 248 F.3d 87, 95 (2d Cir. 2001). 21
We agree with the district court that Gonzalez fails to proffer sufficient evidence for a jury 22
to infer a causal connection between her protected activity and termination . Gonzalez therefore 23
does not meet her burden of making out a prim a facie case of retaliation. See Cox , 760 F.3d at 24
145. Gonzalez’s extensive history of performance issues and ongoing discipline dating back to 25

2010

— long before her protected activity in 2016

— prevent her from establishing an indirect causal 26

connection. Although Gonzalez argues that the “temporal proximity” between her protected 274 activity and her termination gives rise to an inference of discrimination, see Appellant’s Br. at 22, 1
her argument fails because her termination was preceded by “gradual adverse j ob actions [that] 2
began well before [Gonzalez] had ever engaged in any protected activity

. ” Slattery , 248 F.3d at 3

95

. Moreover, Gonzalez no call no showed and was disciplined a week before she began assisting 4

Troche with her lawsuit, and she no call no sh owed again a week before Troche filed her lawsuit 5

and two weeks before NYULH was served with the complaint . Given Gonzalez’s history of 6
performance issues and discipline, temporal proximity , without more, is insufficient to raise an 7

inference of discrimin ation. See id. 8
Gonzalez also fails to proffer sufficient evidence for a jury to infer that NYULH had 9
knowledge of Gonzalez’s protected activity prior to her termination. See Cox , 760 F.3d at 145

. 10

Gonzalez asserts that her assistance with Troche’s lawsui t was protected activity, but there is no 11

evidence that anyone at NYULH knew about Gonzalez’s assistance before she was disciplined for 12
her no call no shows. Even in her own deposition testimony, Gonzalez merely speculates that her 13
supervisor, Rebecca Ort iz
, was told about Gonzalez's assistance of Troche by another employee, 14

Rosa Perez , without any factual basis or specificity as to timing

. See App’x 485

– 88 (Gonzalez 15
asserting that Perez is an “informer” and has Ortiz “on speed dial,” but conceding that she had no 16
knowledge that Perez told Ortiz anything). Moreover, although NYULH was served with Troche’s 17
complaint on February 3, 2017

— four days before Gonzalez’s termination

— the complaint does 18
not mention Gonzalez or otherwise alert NYULH of her protected activity. There is thus no 19
evidence that NYULH had knowledge of Gonzalez’s protected activity , an essential element of a 20
prima facie case of r etaliation. 21
Without evidence of a causal connection between Gonzalez’s protected activity and her 22

termination or of NYULH’s knowledge of Gonzalez’s protected activity, Gonzalez fails to meet 235 her burden of establishing a prima facie case of retaliation

. N YULH is therefore entitled to 1
summary judgment. See Cox , 760 F.3d at 145 . We have considered the remainder of Gonzalez’s 2
arguments and find them to be without merit. For the foregoing reasons, we affirm the judgment 3

of the district court. 4

FOR THE COUR T: 5 Catherine O ’ Hagan Wolfe, Cler k of Court 6