13-1376 Piasecki v. Shinseki



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 18 th** **day of February, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **DEBRA ANN LIVINGSTON,** 7 **GERARD E. LYNCH,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **Bonnie Piasecki,** 12 **Plaintiff-Appellant ,**  13 14 **Irene Prevorse, Jan Hensel,** 15 **Plaintiffs ,**  16 17 **-v.- 13-1376-cv** 18 19 **Eric Shinseki, Secretary, Department** 20 **of Veterans Affairs,** 21 **Defendant-Appellee**

**.** 22
- - - - - - - - - - - - - - - - - - - -X 23 24
**FOR APPELLANT:** JEFFREY WICKS, Jeffrey Wicks, 25 PLLC, Rochester, New York. 26 27

1**FOR APPELLEE:** MICHAEL S. CERRONE, Assistant 1 United States Attorney, (Jane B. 2 Wolfe, Assistant United States 3 Attorney, on the brief ), for 4 William J. Hochul, Jr., United 5 States Attorney, Western 6 District of New York, Buffalo, 7 New York. 8 9 Appeal from a judgment of the United States District 10 Court for the Western District of New York (Arcara, J. ). 11 12 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 13
**AND DECREED**that the judgment of the district court be 14
**AFFIRMED**

. 15 16 Bonnie Piasecki appeals from the final judgment of the 17 United States District Court for the Western District of New 18 York (Arcara, J. ), granting summary judgment in favor of the 19 Department of Veteran Affairs (“VA”) on Piasecki’s Title VII 20 (42 U.S.C. § 2000e, et seq. ) retaliation claims . On appeal, 21 Piasecki argues that the evidence is sufficient to permit a 22 reasonable jury to find that she was fired from her nursing 23 assistant position at the VA for complaining about sexual 24 harassment by a co-worker and not, as the VA claims, for 25 lying under oath during an administrative investigation and 26 inappropriate workplace behavior. We assume the parties’ 27 familiarity with the underlying facts, the procedural 28 history, and the issues presented for review

. 29 30 The district court’s grant of summary judgment is 31 reviewed de novo . SeeGonzalez v. City of Schenectady , 728 32 F.3d 149, 154 (2d Cir. 2013). “Summary judgment is 33 appropriate if there is no genuine dispute as to any 34 material fact and the moving party is entitled to judgment 35 as a matter of law.” Id. In making this determination, we 36 “resolve all ambiguities and draw all permissible factual 37 inferences in favor of the party against whom summary 38 judgment is sought.” Terry v. Ashcroft , 336 F.3d 128, 137 39 (2d Cir. 2003) (internal quotation marks omitted). Summary 40 judgment is appropriate “[w]here the record taken as a whole 41 could not lead a rational trier of fact to find for the 42 non-moving party.” Matsushita Elec. Indus. Co. v. Zenith 43 Radio Corp. , 475 U.S. 574, 587 (1986). 44 45

2Retaliation claims are governed by the McDonnell 1 Douglas Corp. v. Greenburden-shifting framework. See411 2 U.S. 792, 802-4 (1973). Once an employer asserts a non3 retaliatory reason for a termination, the employer “will be 4 entitled to summary judgment unless the plaintiff can point 5 to evidence” that reasonably supports a finding of 6 retaliation. Dawson v. Bumble & Bumble , 398 F.3d 211, 216 7 (2d Cir. 2005) (ellipsis and citation omitted). 8 9 In the district court, Piasecki conceded “that [the VA] 10 has articulated a clear, legitimate and non-retaliatory 11 reason for terminating [Piasecki], i.e. the [Administrative 12 Board of Investigation]’s intervening findings against 13 [Piasecki] after she complained about sexual harassment 14 against Pontillo five months earlier.” Plaintiff’s 15 Objections to M.J. Scott’s Report & Recommendation at 9, 16 Piasecki v. Shinseki , No. 10-cv-208 (W.D.N.Y. Dec. 29, 17 2012), ECF No. 47 (“Objections to R&R”). However, Piasecki 18 offered evidence that “the proposed removal in February 2009 19 and the actual removal in May 2009 occurred in close 20 proximity of time to [Piasecki’s] protected activity,” and 21 argued that this was sufficient to show that the VA’s stated 22 reason was mere pretext. Id. at 10-11. 23 24 “The temporal proximity of events may give rise to an 25 inference of retaliation for the purposes of establishing a 26 prima facie case of retaliation under Title VII, but without 27 more, such temporal proximity is insufficient to satisfy 28 appellant’s burden to bring forward some evidence of 29 pretext.” El Sayed v. Hilton Hotels Corp. , 627 F.3d 931, 30 933 (2d Cir. 2010). Although Piasecki asserted that the 31 board “elect[ed] to focus on [Piasecki], the victim[], and 32 not Pontillo, the perpetrator,” Objections to R&R at 10, her 33 evidence does not support this claim. Moreover, Piasecki 34 does not dispute the board’s findings that her oral 35 statements during the investigation, made under oath, 36 contradicted her earlier statements in numerous respects. 37 38 Piasecki’s reliance on Gilooly v. Missouri Department 39 of Health & Senior Services , 421 F.3d 734 (8th Cir. 2005), 40 is unavailing. Giloolyheld that a retaliation claim 41 survives summary judgment when the employer’s stated reason 42 for disciplinary action was simply that it disbelieved the 43 employee’s discrimination complaint. Even assuming (without 44 deciding) that holding was correct, that court distinguished 45

3a case in which the employer “found a clearer record of 1 deception and detailed the basis for such findings.” Id. at 2 741. Here, the VA conducted a lengthy investigation and 3 laid out extensive evidence of Piasecki’s deception, as well 4 as evidence of significant workplace misconduct. Piasecki 5 offers no meaningful rebuttal of the VA’s findings and no 6 evidence that those findings were pretextual. 7 8 For the foregoing reasons, and finding no merit in 9 Piasecki’s other arguments, we hereby **AFFIRM** the judgment of 10 the district court. 11 12 13
FOR THE COURT: 14 CATHERINE O’HAGAN WOLFE, CLERK 15 16

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