12-159-cv Fosco v. CUNY **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 Street, in the City of New York, 3 on the 22 ndday of February, two thousand thirteen. 4 5 PRESENT: RICHARD C. WESLEY, 6 DENNY CHIN, 7 Circuit Judges

. 8 DAVID G. LARIMER, 9 District Judge

. * 10 11 12 13 MARIA FOSCO, 14 15 Plaintiff-Appellant , 16 17 -v.- 12-159-cv 18 19 CITY UNIVERSITY OF NEW YORK, QUEENS COLLEGE, THE JOHN D. 20 CALANDRA ITALIAN AMERICAN INSTITUTE, 21 22 Defendants-Appellees, 23 24 MATTHEW GOLDSTEIN, JAMES MUYSKENS, ANTHONY TAMBURRI, 25 26 Defendants. 27 28 29

* The Honorable David G. Larimer, of the United States District Court for the Western District of New York, sitting by designation.FOR APPELLANT: STEVEN M. WARSHAWSKY, The Warshawsky Law 1 Firm, New York, NY. 2 3 FOR APPELLEES: ANDREW AMEND, Assistant Solicitor General 4 (Barbara D. Underwood, Solicitor General, 5 Michael S. Belohlavek, Senior Counsel, 6 Matthew W. Grieco, Assistant Solicitor 7 General, on the brief ) , forEric T. 8 Schneiderman, Attorney General of the 9 State of New York, New York, NY. 10 11 Appeal from the United States District Court for the 12 Southern District of New York (Pauley, J. ). 13 14 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 15
**AND DECREED**that the judgment of the United States District 16 Court for the Southern District of New York be **AFFIRMED**
. 17 Plaintiff-Appellant Maria Fosco appeals from the 18 district court’s award of summary judgment in favor of 19 defendants, embodied in the court’s Memorandum and Order 20 dated January 5, 2012, on Fosco’s claim that her employer 21 retaliated against her in violation of Title VII of the 22 Civil Rights Act of 1964. We assume the parties’ 23 familiarity with the underlying facts, procedural history, 24 and specification of issues for review. 25 “We review a district court’s grant of summary judgment 26 de novo, construing the evidence in the light most favorable 27 to the nonmoving party and drawing all reasonable inferences 28 in that party’s favor.” Kuebel v. Black & Decker Inc. , 643 29

2F.3d 352, 358 (2d Cir. 2011). “Summary judgment is 1 appropriate only ‘[w]here the record taken as a whole could 2 not lead a rational trier of fact to find for the non-moving 3 party.’” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7 , 691 4 F.3d 134, 141 (2d Cir. 2012) (quoting Matsushita Electric 5 Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)). 6 “Retaliation claims under Title VII are evaluated under a 7 three-step burden-shifting analysis.” Hicks v. Baines , 593 8 F.3d 159, 164 (2d Cir. 2010) (citing McDonnell Douglas Corp. 9
v. Green , 411 U.S. 792, 802-05 (1973)) (internal quotations 10 omitted). At the first step, “[t]o establish a prima facie 11 case of retaliation, an employee must show that (1) she was 12 engaged in protected activity; (2) the employer was aware of 13 that activity; (3) the employee suffered a materially 14 adverse action; and (4) there was a causal connection 15 between the protected activity and that adverse action.” 16 Lore v. City of Syracuse , 670 F.3d 127, 157 (2d Cir. 2012). 17 The district court’s grant of summary judgment depended 18 upon its finding that Fosco had failed to present evidence 19 of a causal connection between any protected activity in 20 which she engaged and her reassignment to the admissions 21 office. The court relied on the lack of temporal proximity 22

3between Fosco’s involvement in litigation and her transfer, 1 but as Fosco notes, her argument depends not on timing but 2 on direct evidence of statements made by her employers, in 3 particular Queens College President James Muyskens and Dean 4 Anthony Tamburri. Nonetheless, especially in light of the 5 significant passage of time since the allegedly protected 6 activity, we find that the comments, considered in context, 7 do not constitute evidence from which a reasonable jury 8 could conclude that defendants chose to reassign Fosco as a 9 result of that activity. Because Fosco cannot make the 10 required showing on this element of the four-part test, her 11 retaliation claim fails. 12 We have considered Fosco’s remaining arguments and find 13 them to be without merit. For the foregoing reasons, the 14 district court’s grant of summary judgment in defendants’ 15 favor is hereby **AFFIRMED.** 16
17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21 22 23 24

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