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 (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. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 22nd 3 day of September, two thousand twenty-two.

4

5 PRESENT:

6 ROSEMARY S. POOLER,

7 ROBERT D. SACK,

8 MICHAEL H. PARK,

9 Circuit Judges.

10 _____________________________________

11

12 AIDA GONZALEZ, 

13

14 Plaintiff-Appellant,

15

16 v. 21-2569

17

18 NYU LANGONE HOSPITALS,

19

Defendant-Appellee.* 20

21 _____________________________________

22

23 FOR PLAINTIFF-APPELLANT: Kareem El-Din Abdo, Law Office of Kareem 

24 Abdo, New York, NY.

25

26 FOR DEFENDANT-APPELLEE: William Cusack III, Ogletree, Deakins, Nash, 

27 Smoak & Stewart, P.C., New York, NY.

* The Clerk of Court is respectfully directed to amend the caption accordingly. 
2

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

2 New York (Vyskocil, J.).

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

4 DECREED that the judgment of the district court is AFFIRMED. 

5 Aida Gonzalez was a long-time employee of NYU Langone Hospitals (“NYULH”) who 

6 worked as a dietary aide. Between 2010 and 2017, Gonzalez had several performance issues, 

7 including failure to follow proper clocking in and out procedures and “no call no shows.” 

8 Gonzalez’s NYULH supervisors repeatedly warned Gonzalez that her failure to correct these 

9 performance issues could result in disciplinary action as serious as termination. NYULH finally 

10 terminated Gonzalez on February 7, 2017, citing a no call no show three weeks earlier, her alleged 

11 dishonestly about her supervisor’s approval of a time off request, and a final warning she had 

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

13 under Title VII of the Civil Rights Act of 1964 alleging that her termination was retaliation for 

14 assisting a fellow NYULH employee, Aura Troche, to bring a lawsuit against NYULH by 

15 providing translation services for Troche at Troche's attorney’s office beginning on October 18, 

16 2016. NYULH moved for summary judgment, which the district court granted because it 

17 determined that Gonzalez failed to establish a prima facie case of retaliation by failing to proffer 

18 evidence that her termination was causally connected to her protected activity of helping Troche. 

19 Gonzalez appealed. We assume the parties’ familiarity with the underlying facts, procedural 

20 history, and issues on appeal.

21 We review the entry of summary judgment de novo, “construing the evidence in the light 

22 most favorable to the nonmoving party and drawing all reasonable inferences in [the nonmoving 

23 party’s] favor.” McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012). Title VII prohibits 
3

1 employers from retaliating against employees for assisting other employees in opposing 

2 discriminatory employment practices. See 42 U.S.C. § 2000e–3(a). 

3 In order to show a prima facie case of retaliation in response to a motion for summary 

4 judgment, a plaintiff must submit sufficient admissible evidence to allow a trier of fact to 

5 find: (i) conduct by the plaintiff that is protected activity under Title VII; (ii) of which the 

6 employer was aware; (iii) followed by an adverse employment action of a nature that would 

7 deter a reasonable employee from making or supporting a discrimination claim; (iv) that 

8 was causally connected to the protected activity.

9

10 Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 145 (2d Cir. 2014) (citation omitted). There 

11 are two ways in which a plaintiff can demonstrate a causal connection: “indirectly, by showing 

12 that the protected activity was followed closely by discriminatory treatment, or through other 

13 circumstantial evidence such as disparate treatment of fellow employees who engaged in similar 

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

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

16 N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). Although “[t]he temporal proximity of 

17 events may give rise to an inference of retaliation for the purposes of establishing a prima facie 

18 case of retaliation under Title VII,” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 

19 2010), “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions 

20 began well before the plaintiff had ever engaged in any protected activity, an inference of 

21 retaliation does not arise,” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).

22 We agree with the district court that Gonzalez fails to proffer sufficient evidence for a jury 

23 to infer a causal connection between her protected activity and termination. Gonzalez therefore

24 does not meet her burden of making out a prima facie case of retaliation. See Cox, 760 F.3d at 

25 145. Gonzalez’s extensive history of performance issues and ongoing discipline dating back to 

26 2010—long before her protected activity in 2016—prevent her from establishing an indirect causal 

27 connection. Although Gonzalez argues that the “temporal proximity” between her protected 
4

1 activity and her termination gives rise to an inference of discrimination, see Appellant’s Br. at 22, 

2 her argument fails because her termination was preceded by “gradual adverse job actions [that] 

3 began well before [Gonzalez] had ever engaged in any protected activity.” Slattery, 248 F.3d at 

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

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

6 and two weeks before NYULH was served with the complaint. Given Gonzalez’s history of 

7 performance issues and discipline, temporal proximity, without more, is insufficient to raise an 

8 inference of discrimination. See id.

9 Gonzalez also fails to proffer sufficient evidence for a jury to infer that NYULH had 

10 knowledge of Gonzalez’s protected activity prior to her termination. See Cox, 760 F.3d at 145. 

11 Gonzalez asserts that her assistance with Troche’s lawsuit was protected activity, but there is no 

12 evidence that anyone at NYULH knew about Gonzalez’s assistance before she was disciplined for 

13 her no call no shows. Even in her own deposition testimony, Gonzalez merely speculates that her 

14 supervisor, Rebecca Ortiz, was told about Gonzalez's assistance of Troche by another employee, 

15 Rosa Perez, without any factual basis or specificity as to timing. See App’x 485–88 (Gonzalez 

16 asserting that Perez is an “informer” and has Ortiz “on speed dial,” but conceding that she had no 

17 knowledge that Perez told Ortiz anything). Moreover, although NYULH was served with Troche’s 

18 complaint on February 3, 2017—four days before Gonzalez’s termination—the complaint does 

19 not mention Gonzalez or otherwise alert NYULH of her protected activity. There is thus no 

20 evidence that NYULH had knowledge of Gonzalez’s protected activity, an essential element of a 

21 prima facie case of retaliation. 

22 Without evidence of a causal connection between Gonzalez’s protected activity and her 

23 termination or of NYULH’s knowledge of Gonzalez’s protected activity, Gonzalez fails to meet 
5

1 her burden of establishing a prima facie case of retaliation. NYULH is therefore entitled to 

2 summary judgment. See Cox, 760 F.3d at 145. We have considered the remainder of Gonzalez’s 

3 arguments and find them to be without merit. For the foregoing reasons, we affirm the judgment 

4 of the district court. 

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk of Court