1 17

‐ 993

Meyer v. Shulkin



### 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

A 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 for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 19 th day of January, two thousand

eighteen.

PRESENT: DENNIS JACOBS,

PETER W. HALL,

CHRISTOPHER F. DRONEY,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

JILL S. MEYER, M.D.,

Plaintiff

‐ Appellant,

‐ v. ‐ 17

‐ 993

DAVID J. SHULKIN, SECRETARY,

DEPARTMENT OF VETERANS AFFAIRS,

Defendant

‐ Appellee,

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X2 FOR PLAINTIFF

‐ APPELLANT: ALAN E. WOLIN, Wolin & Wolin;

Jericho, NY.

FOR DEFENDANT

‐ APPELLEE: RUKHSANAH L. SINGH, Assistant

United States Attorney (Varuni

Nelson, Assistant United States

Attorney, on the brief), for Bridget

M. Rohde, Acting United States

Attorney; Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Weinstein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court is

AFFIRMED

.

Jill Meyer appeals from the judgment of the United States District Court

for the Eastern District of New York (Weinstein, J.) dismissing her Complaint on

summary judgment. Meyer alleges, under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 633a, that in 2012 she was not hired for a

staff psychiatrist position at the New Jersey Veterans’ Affairs Medical Center (the

“NJ VA”) because of her age and in retaliation for her protected Equal

Employment Opportunity (“EEO”) activity. We assume the parties’ familiarity

with the underlying facts, the procedural history, and the issues presented for

review.

Meyer, born in February 1953, was employed as a psychiatrist at the NJ

VA from December 1994 until she voluntarily resigned in February 2004. During

that time, she filed eight EEO complaints. She received her medical degree from

the University of Dominica (Ross University), but has never been board

‐ certified

in any area of medicine. The NJ VA announced vacancies for a staff psychiatrist

in 2011 and 2012; Meyer applied in 2011, and her application rolled over into the

selection pool for the two vacancies available in 2012. The vacancy

announcement did not specify that board certification was a requirement for the

position, but the doctors on the NJ VA’s selection panel determined, prior to3 reviewing applications, that they preferred board

‐ certified candidates, whom

they considered better qualified. Both board

‐ certified and non

‐ board

‐ certified

psychiatrists applied for the position; however, the selection panel chose to

interview only board

‐ certified applicants and hired two such psychiatrists aged

31 and 38.

Meyer filed an EEO Complaint with the VA alleging that her non

‐ selection

for the position was based on religion, age, and prior EEO activity. The VA EEO

entered judgment in favor of the VA, which the Equal Employment Opportunity

Commission affirmed. This litigation ensued.

We review de novo a district court’s grant of summary judgment, VKK

Corp. v. Nat’l Football League, 244 F.3d 114, 118 (2d Cir. 2001), “view[ing] the

evidence in the light most favorable to the party opposing summary judgment,

. . . draw[ing] all reasonable inferences in favor of that party, and

. . . eschew[ing]

credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,

122 (2d Cir. 2004) (citation and quotation marks omitted). Summary judgment is

appropriate if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. F ED

. R. C IV

. P. 56.

We analyze ADEA claims for age discrimination and retaliation under the

burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). See Bucalo v. Shelter Island Union Free School Dist., 691 F.3d

119, 129 (2d Cir. 2012). The plaintiff has the initial burden of establishing a prima

facie case for age discrimination: “(1) that she was within the protected age

group, (2) that she was qualified for the position, (3) that she experienced

adverse employment action, and (4) that the action occurred under

circumstances giving rise to an inference of discrimination.” Id. (quoting

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)). To establish

a prima facie case for retaliation under the ADEA, the plaintiff must show “(1)

participation in a protected activity; (2) that the defendant knew of the protected

activity; (3) an adverse employment action; and (4) a causal connection between

the protected activity and the adverse employment action.” Id. (quoting Jute v.

Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). If the plaintiff

establishes a prima facie case for age discrimination or retaliation, the burden

shifts to the defendant to articulate “a legitimate, nondiscriminatory reason” for4 the adverse employment action. Id. at 132 (citation and internal quotation marks

omitted). If the defendant sustains that burden, the plaintiff must show that the

proffered justification is pretextual. Id.

There is no basis to infer age discrimination from Meyer’s failure to obtain

the staff psychiatrist position: she fails to identify any evidence that the reason

the NJ VA did not hire her was her age; and she offers no support for her

assertion that the NJ VA’s preference for board

‐ certified physicians was mere

pretext for discrimination. Meyer relies solely on the circumstances that the

individuals hired were younger; but such conclusory allegations are insufficient

to resist a motion for summary judgment. See Delaney v. Bank of Am. Corp. 766

F.3d 163, 169

‐ 70 (2d Cir. 2014) (affirming summary judgment where employee

failed to identify any admissible age

‐ related evidence). Accordingly, Meyer has

failed to sustain her burden to show a prima facie case of age discrimination.

Regarding the retaliation claim, Meyer has failed to show a causal

connection between her ADEA protected activity and her non

‐ selection for the

position. A causal connection may be shown either “(1) indirectly, by showing

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

through other circumstantial evidence such as disparate treatment of fellow

employees who engaged in similar conduct; or (2) directly, through evidence of

retaliatory animus directed against the plaintiff by the defendant.” Hicks v.

Baines, 593 F.3d 159, 170 (2d Cir. 2010) (citation and internal quotation marks

omitted). On appeal, Meyer argues that she established temporal proximity

because her application for the VA NJ staff psychiatrist position was the first

opportunity presented to retaliate for her protected activities.

Temporal proximity between the protected activity and the adverse

employment action “must be very close.” Clark Cnty. Sch. Dist. v. Breeden, 532

U.S. 268, 273 (2001) (citation and internal quotation marks omitted). Meyer

engaged in age

‐ related protected activity when she filed an EEO complaint in

2003 that alleged (in part) age discrimination against the NJ VA. See Meyer v.

McDonald, 241 F. Supp. 3d 379, 394

‐ 95 (E.D.N.Y. 2017). 1 Thus, approximately

1 Meyer also engaged in protected ADEA activity when she filed an EEO

complaint in 2009 alleging that the VA Medical Center in Syracuse, New York

discriminated against her on the basis of age when it rescinded a conditional job5 eight years elapsed between Meyer’s EEO complaint and the claimed adverse

employment action. Eight years is much too long an interval to support a

plausible inference of causation. See, e.g., Breeden, 532 U.S. at 274 (“Action taken

. . . 20 months later suggests, by itself, no causality at all.”); Hollander v. Am.

Cyanamid Co., 895 F.2d 80, 85

‐ 86 (2d Cir. 1990) (holding that three

‐ and

‐ a

‐ half

month period between the complaint and the adverse action was insufficient to

show “causal nexus”). Furthermore, temporal proximity is not established

simply because the NJ VA selection panel retaliated at the first opportunity;

retaliation at the first opportunity is a valid consideration only if the temporal

sequence is already close. See Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir.

2013). Meyer has failed to establish a prima facie case of retaliation.

We have considered Meyer’s remaining arguments and conclude that they

are without any merit. The judgment of the district court is AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

offer. However, the district court ruled that the NJ VA selection panel had no

knowledge of the 2009 complaint and that Meyer could not rely on “mere

corporate knowledge” to establish a causal connection. Meyer, 241 F. Supp. 3d at

395 (citing Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 n. 4 (2d Cir. 2013).

Meyer does not contest this holding on appeal.