20

- 3646

- cv Milord

- Francois v. N.Y. State Off ice of the Medicaid Inspector Gen. et al.

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 FED ERAL APPENDIX 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17 th day of F ebruary , two thousand twenty

- two.
PRESENT: M ICHAEL H. P ARK , W ILLIAM J. N ARDINI , M YRNA P ÉREZ , Circuit Judges

.

_____________________________________ FERLANDE MILORD

- FRANCOIS , Plaintiff

- Appellant ,

v. No. 20

- 3 646

- cv
NEW YORK STATE OFFICE OF THE MEDICAID INSPECTOR GENERAL, DENNIS ROSEN, JANINE DANIELS

- RIVERA, Defendants

- Appellees. *

_____________________________________ For Plaintiff

- Appellant : W ILLIAM W. C OWLES ( Samuel O. Maduegbuna , on the brief ) , Madu e gbuna Cooper LLP, New York, NY.
F or D efendants

- A ppellees : A RI J. S AVITZKY , Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, on the brief ) , for Letitia James,

* The Clerk of Court is respectfully directed to amend the caption of the case as set forth above

.2 Attorney General, State of New York , New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New York ( Lewis J. Liman , J

. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART AND VACATED AND REMANDED IN PART

. The New York State Office of the Medicaid Inspector General (“OMIG”) temporarily promoted Ferlande Milord

- Francois, a b lack lawyer of Haitian descent, to a man agerial role. The permanency of the promotion was contingent on Milord

- Francois receiving a satisfactory evaluation at the end of a one - year probationary period. OMIG demoted Milord

- Francois after she received a negative evaluation report at the end of t h is period. Shortly thereafter, Milord

Francois sued OMIG and two of its high

- level supervisors , assert ing three sets of claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ; the Civil Rights Act of 1871, 42 U.S.C. § 1983 ; the New York State Human Rights Law , N.Y. Exec. Law § 296 et seq. (“NYSHRL”) ; and the New York City Human Rights Law , N.Y.C. Admin. Code § 8

- 107 et seq. (“NYCHRL”). Milord

- Francois claims that she was subjec t to a hostile work environment , that she experienced racial discrimination for not comporting with a racial stereotype in the workplace, and that she was demoted as retaliation for raising another employee’s discriminatory comments to management

. The dis trict court concluded that Milord

- Francois failed to raise a genuine dispute of material fact as to her Title VII , § 1983, and NYSHRL claims and granted summary judgment in favor of Defendants. The court also declined to exercise supplemental jurisdiction over the NYCHRL claims. See Milord

- Francois v. N.Y. State Off. Medicaid Inspector Gen. , No. 19

- cv 00179, 2020 WL 5659438 (S.D.N.Y. Sept. 23, 2020).
Milord

- Francois appeals, arguing that the district court failed to construe the facts and make reasonable inferences in her favor, impermissibly resolved credibility issues, and misapplie d the standard governing her claims. We assume the parties’ familiarity with the record

. I. Factual Background
Milord

- Francois began working a s a Senior Attorney a t OMIG’s Office of Counsel division in July 2010. At all relevant times, D efendant D ennis Rosen was the State Medicaid Inspector General and D efendant Janine Daniels

- Rivera was the General Counsel who held ultimate
res ponsibility for managing the Office of Counsel. 1 In February 2015, OMIG posted vacanc ies for Associate Attorney s , who were responsible for overseeing Senior Attorneys. Daniels

- Rivera , who is b lack, promoted Milord

- Francois and a white Senior Attorney , Barry Mandel , to Associate Attorneys, despite having interview ed several external candidates who scored better on the ir civil service exams
. Although Mandel and Milor d

- Francois lacked previous supervisory experience, Daniels

- Rivera believed that it was be tter for OMIG to “invest in [its] own , ” and that Milord

Francois in particular should “be given the opportunity to be trained to determine if she can develop

1 The Office of Counsel is led by the General Counsel. Deputy Counsels oversee the Associate Attorneys, who in turn supervise the Senior Attorneys, the office’s line attorneys

.3 the skills necessary to become an effective supervisor.” App’x at 172. Both Mandel and Milord

Fr ancois were required to comp l ete a one

- year probationary period before their positions became permanent. Milord

- Francois was ultimately demoted back to Senior Attorney after Daniels

- Rivera issued a final, unsatisfactory probation evaluation report i n September 2016.
A. Incidents Between Milord

- Francois and Henzel
Milord

- Francois ’s claims arise mainly from her interactions

— both before and after her promotion

— with Robyn Henzel, a white Senior Attorney at the office. While Milord

- Francois was a Senior A ttorney, Henzel once loudly ask ed Milord

- Francois if she was “getting drugs in there?” when Milord

- Francois entered a colleague’s office for an aspirin

. Id. at 330. Henzel then told everyone at the office “that she was concerned about [Milord

- Francois ] taking drugs.” Id. Another time , during a ticker tape parade in front of the OMIG building, Henzel approached Milord

- Francois “out of the blue” and said, “oh my G od, your black face, your black face scares me.” Id. at 322. Lastly, Milord

- Fra ncois stated that she overheard Henzel telling other workers that she ha d to go to a funeral in Harlem and , if she did not return, th en “they” killed her , which Milord

- Francois understood to refer to b lack residents in Harlem

. See id. at 489

– 90. Milord

Francois never filed a formal complaint or otherwise report ed these incidents to management before her promotion. She first disclos ed some of these interactions in March 2016

— five months into her probationary period

— when Matt Chiesa , O MIG’s D irector of Labor Relations , talked to Milord

- Francois as part of his investigation into a workplace violence complaint filed b y a Senior Attorney against Henzel.
After Milord

- Francois’s promotion, her interactions with Henzel fared no better. On May 5, 2016, Henzel

— whose direct supervisor at the time was Mandel

— f latly refused to accept an assignment from Milord

- Francois . Henzel started screaming and yelled “ [y] ou shouldn’t have been an associate attorney.” Id. at 337. Shortly after, Daniels

- Rivera convened a meeting with Milord

- Francois and the other supervisors to discuss how the situation could have been handled differently. At that meeting, Milord

- Francois t old Daniels

- Rivera that “there was nothing I could have done to alleviate the situation” because Henzel “calls me black face . . . [s] he call ed me angry face.” Id. at 333. Approximately a week later , Daniels

- Rivera again met with Milord

- Francois to discu ss what she was doing “to fix the problem” with Henzel, to which Milord

- Francois replied, “I cannot fix the problem . It is not me. . . . [T] h is girl uses racial slurs toward s me.” Id. at 324. According to Milord

- Francois , Daniels

- Rivera replied that, “ a s a manager, you have to accept [it]

— as a manager, I have dealt with [it]. As a manager, I have experienced it. And as a manager, you have to deal with it.” Id. at 312.
B. Milord

- Francois ’s Probation Reports and Demotion In July 2016, Daniels

- R ivera drafted probation reports for Mandel and Milord

- Francois , giving them both unfavorable ratings with detailed explanations of their shortcomings as managers
. 2 Daniels

- Rivera extended the probation period for both by a month , based on their

2 Prior to this, Daniels

- Rivera had given Milord

- Francois negative feedback on Mil ord

- Francois’s work product. For example, on March 16, 2016, Daniels

- Rivera replied with critiques to Milord

- Francois’s March 15, 2016, email submission of a performance evaluation for one of Milord

- Francois’s assigned supervisees.4 absences and need for time to address the issues noted in the interim report. In September 2016, Daniels

- Rivera issued a negative final probation report for Milord

- Francois and demoted her back to Senior Attorney . The report noted that Milord

- Francois failed to improve on the deficiencies raised in the July 2016 report. At the meeting where Daniels

- Rivera presented the final report , Milord

- Francois testified that she compl ained to Daniels

- River a that, “you never told me there was anything wrong with my work.” Id. at 447. Daniels

- Rivera’s reply , according to Milord

- Francois , was that there was “ nothing wrong with [Milord

- Francois ’s] work” but that Milord

- Francois “wasn’t implementing [Daniels

- Rivera’s] vision.” Id. at 448.
II. Discussion

“ We review de novo a district court’s decision to grant summary judgment , constru ing the evidence in the light most favorable to the party against whom summary judgment was granted and draw ing all reasonable inference s in that party’s favor

. ” Bey v. City of New York , 999 F.3d 157, 164 (2d Cir. 2021).
A. Status

- Based Discrimination
Milord

- Francois ’s racial discrimination claim s under Title VII, § 1983, and NYSHRL are subject to the McDonnell Douglas burden

- shifting framework. See Kirkland v. Cablevision Sys. , 760 F.3d 223, 225 (2d Cir. 2014) (Title VII); Garcia v. Ha rtford Police Dep’t , 706 F.3d 120, 127 (2d Cir. 2013) ( § 1983); Tolbert v. Smith , 790 F.3d 427, 4 34 (2d Cir. 2015) (NYSHRL). Under this standard, Milord

- Francois “bears the burden of establishing a prima facie case of discrimination by showing (1) [s]he belonged to a protected class; (2) [s]he was qualified for the position [s]he held; (3) [s]he suffered an adverse employment action ; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Tolbert , 790 F.3d at 435 ( internal quotation marks omitted ). Once a plaintiff “ makes a prima facie case of

. . . discrimination . . . , the burden shifts to the employer to give a legitimate,
non - discriminatory reason for its actions

. ” Kirklan d , 760 F.3d at 225. “If the employer does so, the burden then shifts back to the plaintiff to show that the employer’s explanation is a pretext for race discrimination

. . . . ” Id

. For this last step, when a discrimination claim is based on § 1983 , a pl aintiff must meet a more stringent showing of “but

- for” causation. See Naumovski v. Norris , 934 F.3d 200, 213 (2d Cir. 2019). By contrast, for claims under Title VII and NYSHRL, a plaintiff need meet only the less rigorous “motivating factor” standard. See Holcomb v. Iona Coll. , 521 F.3d 130, 137

– 38 (2d Cir. 2008). “In other words, a Title VII [or NYSHRL] plaintiff need only prove that the employer ’ s [or supervisor’s 3 ] stated non

- discriminatory reason w as not the exclusive reason for the adverse employment action. By contrast, to establish ‘pretext’ under § 1983, a plaintiff must establish that the employer ’ s stated reason would not, alone, constitute a sufficient basis for pursuing an adverse action”

— i .e., “that the employer ’ s stated non

- discriminatory reason is either false or inadequate to support the adverse employment action.” Naumovski , 934 F.3d at

3 Although “claims brou ght under New York State’s Human Rights Law are analytically identical to claims brought under Title VII,” there is one notable exception: “while an individual defendant with supervisory control may not be held personally liable under Title VII[,] an indiv idual defendant may be held liable under the aiding and abetting provision of the NYSHRL if [they] actually participate[] in the conduct giving rise to a discrimination claim.” Rojas v. Roman Catholic Diocese of Rochester , 660 F.3d 98, 107 n.10 (2d Cir. 2011) (internal quotation marks and citations omitted).5 214

– 15.
Milord

- Francois claims that she raises a triable issue as to whether racial discrimination contributed to her demotion . She argues that D aniels

- Rivera, also a b lack woman, “demoted Mil o rd after she refused to ignore Henzel’s discrimination” and thus imposed on Milord

- Francois “a type of racial stereotyping” which includes “[t]he belief that black people must excuse racism to advance their careers.” Appellant’s Br. at 26

. The questions before us are whether Milord

Francois met her burden at the prima facie stage ; if so, whethe r Defendants proffer ed a legitimate , non - discriminatory reason for Milord

- Francois ’s demotion ( namely, poor performance ) ; and if so, whether Milord

- Francois raised a factual dispute as to whether racial discrimination was a motivating factor for, or a but

- for cause of, that decision. First, although the question is close , we conclude that Milord

- Francois has established a prima facie case of discrimination based on race in light of Daniels

- Rivera’s statements to “accept” and “deal with it ,” made in response to Milord

- Francois’s complaints of Henzel’s racist comments

. Although those statements may very well have been intended to convey to Milord

- Francois nothing more than a view t hat she had a responsibility as a manager to address racially c harged comments by a subordinate, there is just enough ambiguity in those statements

— given the particular facts of this case , and viewed in the light most favorable to the non

- moving party

— to create a genuine issue of material fact as to whether Daniels

- Ri vera was instead perpetuating a racial stereotype by suggesting that Milord

- Francois, as a b lack woman, should ignore racism. Second, we conclude that Defendants have met their burden in providing a legitimate, non discriminatory reason for demoting Milo rd

- Francois : her unsatisfactory performance as an Associate Attorney. See App’x at 185

– 88, 216, 689

– 90, 1079

– 82, 1633

– 38

. In deciding whether a defendant articulated a sufficient nondiscriminatory reason for an adverse action, we do not “assess the credibility of the[] witnesses; nor . . . determine whether the [defendant’s] explanation of its action is convincing. Instead, we ask whether [the] defendant has introduced evidence that,

‘ taken as true, would permit the conclusion that there was a nondiscriminatory reason. ’ ” Holcomb , 521 F.3d at 141 ( internal citation omitted) (quoting St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 50 2, 509 (1993))

. Third, Milord

- Francois raises several arguments as to why a jury could conclude, by a preponderance of the evidence, that this reason was pretextual. We are unpersuaded by most of Milord

- Francois’s arguments, but viewing the evidence in the light most favorable to the non

moving party , we conclude that there is a genuine issue of material fact as to what Daniels

- Rivera meant when she told Milord

- Francois to “accept” and “deal with it.” Milord

- Francois has “raised sufficient evidence upon which a reasonable jury could conclude by a preponderance of the evidence” that Daniels

- Rivera ’ s reason for demoting her is pretextual, and that this decision “was based, at least in part, ” on her race. Id. We therefore vacate the district court’s grant of summary judgment against Milord

- Francois with respect to her NYSHRL claim against Daniels

- Rivera and Title VII claim against OMIG, and remand for further proceedings on those two claims. We do, howe ver, reject several other arguments raised by Milord

- Francois. First, Milord

Francois argue s that Henzel’s racial animus caused Rosen to demote Milord

- Francois , which is enough to show pretext under the cat’s paw theory . Under that t heory, “an employer m ay be held6 liable for an employee’s animus . . . , regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action .” Vasquez v. Empress Ambulance Serv., Inc. , 835 F.3d 267, 276 (2d Cir. 2016) (emphasis added)

. Based on the record, n o jury could find that Rosen caused Milord

- Francois ’s demotion. He did not assist in preparing Milord

- Francois ’s probation evaluation reports a nd the decision to demote Milord

- Francois rested with Daniels

- Rivera, not Rosen. The district court therefore properly granted summary judgment on the status

- based discrimination claims against Rosen (i.e., claims under § 1983 and NYSHRL)

. Further, Milord

- F rancois has failed to show that racial stereotyping “played a decisive role” in her demotion , such that she can establish “but

- for” causation, as required for a § 1983 claim

. Naumovski , 934 F.3d at 217 (emphasis added). Indeed, she failed to show that Da niels

- Rivera’s proffered reason for her demotion

— p oor performance

— was false and inadequate , especially given that Defendants put forward significant evidence that Daniels

- Rivera’s decision to demote Milord

Francois was based on perceived deficiencies in Milord

- Francois’s work rather than any racial considerations. Daniels

- Rivera started providing negative feedback be fore Milord

- Francois told her in May 2016 about the interactions between Milord

- Francois and Henzel. Moreover, Daniels

Rivera’s criticisms were frequent, documented, thorough, and unrelated to Milord

- Francois’s race. See App’x at 185

– 88 (Milord

- Francois’ s negative interim probation report), 216 (email to Milord

Francois’s direct supervisor criticizing Milord

- Francois’s work), 689

– 90 (email to Milord

Francois providing constructive criticism), 1079

– 82 (Daniels

- Rivera’s testimony concerning another employee ’s complaint about Milord

- Francois), 1633

– 38 (Milord

- Francois’s final unsatisfactory probation report). We therefore affirm the district court’s grant of summary judgment to Daniels

- Rivera on Milord

- Francois’s § 1983 claim.
B. Retaliation
Milord

- Francois ’s retaliation claims are analyzed under the same burden

- shifting framework as her discrimination claim s . A prima facie case is established “ by showing (1) participation in a protected activity; (2) that the defendant knew of the protected activi ty; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Lenzi v. Systemax, Inc. , 944 F.3d 97, 112 (2d Cir. 2019) ( internal quotation marks omitted ) . If a defendant proffers a legitimate, non

- retaliatory reason for the adverse employment action, a plaintiff must then show “that the desire to retaliate was the but

- for cause of the challenged employment action.” Ya

- Chen Chen v. City Univ. of New York , 805 F.3d 59, 70 (2d Cir. 2015) ( quoting Univ. of Tex. V. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 352 (2013) )

. Milord

- Francois ’s theory of liability is that Daniels

- Rivera and Rosen demoted Milord

Francois as retaliation after Milord

- Francois complained ab out Henzel’s discriminatory comments to Daniels

- Rivera and Chiesa in May and March 2016

. As to Rosen, Milord

- Francois failed to proffer any facts from which a jury could infer that Rosen knew about Henzel’s remarks to Milord

- Francois . As noted above, Milord

- Francois never filed a formal complaint, and the record does not provide a basis to conclude that either Daniels

Rivera or Chiesa ever communicated these interactions to Rosen. He thus had no knowledge of7 Milord

- Francois ’s protec ted activity

. 4 As to Daniels

- Rivera, even assuming that Milord

- Francois
m ade a prima facie s howing of retaliation , these claims fail for the same reasons as her status

based discrimination claim under § 1983 . Defendants proffered the nondiscriminatory j ustification of poor performance as the basis for Milord

- Francois ’s demotion. This justification is amply supported by the record, and Milord

- Francois does not provide facts from which a jury could conclude that it was her complaints about Henzel’s conduc t, rather than her shortcomings as a supervisor, that was a but

- for cause of her demotion.
C. Hostile Work Environment “[T]o establish a hostile work environment claim under Title VII, a plaintiff must produce enough evidence to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive work ing environment.” Rivera v. Rochester Genes e e Reg’l Transp. Auth. , 743 F.3d 11, 20 (2d Cir. 2014) ( internal quotation marks omitted ). This test “ has objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Id. ( internal quotation marks omitted ) To support her hostile work environm ent claims, Milord

- Francois primarily relies on Henzel’s conduct at the office: (1) her comment to another employee that if she did not return from Harlem, “they” killed her; (2) the “ b lack face” remark directed at Milord

- Francois ; (3) recurring instances of comments concerning Milord

- Francois ’s “angry face ; ” (4) Henzel conducting background checks on everyone in the office; and (5) Henzel’s statements to Milord

- Francois that she should not have been promoted

. These facts are in sufficient to support a hostile work environment claim. These events did not alter the terms of Milord

- Francois ’s employment or interfere with her job. Although several employees filed formal complaints against Henzel, Milord

- Francois did not do so . She only raised these incidents approximately a year later to justify her negative evaluations and in response to a question during the investigation of a complaint filed by another colleague. As to the “black face” and “angry face” comment s in particular , M ilord

- Francois told Chiesa that she “ ignored [Henzel] at the time, because [she] doesn’t have power over me.” App’x at 346. The district court did not err in granting summary judgment to Defendants on these claims.
D. Supplemental Jurisdiction Over the NYCHRL Claim The district court declined to exercise jurisdiction over Milord

- Francois’ s NYCHRL claims because (1) they are subject to standards different from those applied to Title VII and NYSHRL claims , and (2) the court dismissed all of the federal claims over which it had original jurisdictio n
. Because we vacate the district court’s entry of summary judgment as to Milord

Francois’ s claim for status

- based discrimination under Title VII, we note that the dis trict court’s reasoning for declining to exercise supplemental jurisdiction over the NYCHRL claim s is no

4 Moreover , as with the status

- based discrimination claim, Milord

- Francois failed to proffer any facts showing that Rosen caused her demotion. Rosen did not contribute to the probation reports and Daniels

- Rivera was responsible for the decision to demote Milord

- Francois

.8 longer applicable

. The district court should there fore consider, subject to its sound discretion, whether it would be appropriate to exercise supplemental jurisdiction over Milord

- Francois ’ s NYCHRL claims at this time

. See , e.g. , Green v. Mattingly , 585 F.3d 97, 104 (2d Cir. 2009)

. III. Conclusion For the foregoing reasons, we AFFIRM IN PART AND REVERSE IN PART the district court’s judgment. Spec ifically : (1) We AFFIRM the district court’s judgment as to Milord

Francois’s claims for: (i) status

- based discrimination against Rosen , (ii) status

- based discrimination under § 1983 against Daniels

- Rivera , ( iii) retaliation , and (iv) hostile work environm ent; and (2) We VACATE the district court’s judgment and REMAND for further proceedings as to Milord

- Francois’s claims for: (i) status

- based discrimination under Title VII against OMIG based on Daniels

- Rivera’s conduct , (ii) status

- based discrimination under NYSHRL against Daniels

- Rivera , and (i i i) the district court’s determination not to exercise supplemental jurisdiction over the NYCHRL claims

. FOR THE COURT: Catherine O’Hagan Wolfe, Cler k of Court