12-0648-cv Bir v. Pfizer UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 SUMMARY ORDER 4 5 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECE DENTIAL EFFECT. CITATION TO A 6 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 7 BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 8 WHEN CITING A SUMMARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY 9 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 10 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 11 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 12 13 14 At a stated Term of the United States Court of Appeals for the Second 15 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, 16 in the City of New York, on the 31 stday of January, two thousand thirteen. 17 18 Present: SUSAN L. CARNEY, 19 CHRISTOPHER F. DRONEY, 20 Circuit Judges , 21 PAUL G. GARDEPHE, 22 District Judge

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______________________________________________________ 24 | 25 NICOLE A. BIR, | 26 | 27 Appellant , | 28 | 29 v. | No. 12-0648-cv 30 | 31 PFIZER, INC., | 32 | 33 Appellee. | 34 ______________________________________________________| 35 36 37 Appearing for Appellant: L INDY KORN(Charles L. Miller, on the brief ), Law 38 Office of Lindy Korn, Buffalo, NY. 39 40 Appearing for Appellee: P ETER C. M OSKOWITZ (Jillian L. Hunt, on the brief ), 41 Jackson Lewis LLP, New York, NY. 42

*The Honorable Paul G. Gardephe, United StatesDistrict Judge for the Southern District of New York, sitting by designation.Appeal from the United States District Court for the Western District of New 1 York (William M. Skretny, Chief Judge ). ON CONSIDERATION WHEREOF, it is 2 hereby ORDERED, ADJUDGED, and DECREED that the judgment of the District 3 Court be and it hereby is AFFIRMED

. 4 Plaintiff-Appellant Nicole A. Bir appeals from an award of summary 5 judgment in favor of Pfizer, Inc. (“Pfizer”), in whose employ she worked from 1997 6 until 2006 as a sales representative. Her action asserts claims under Title VII of 7 the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000e17; the New York 8 State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290-301; the Equal Pay 9 Act, 29 U.S.C. § 206(d); New York Labor Law § 194; and New York common law. 10 Because plaintiff withdrew her common law claims during the district court 11 proceeding and fails in her appellate brief to address her Equal Pay Act, New York 12 Labor Law § 194, and constructive discharge claims, we consider these claims 13 abandoned for the purpose of this appeal. Plaintiff’s remaining claims, brought 14 under Title VII and the NYSHRL, rest on her allegations that during her 15 employment at Pfizer, she was subject to unlawful discriminatory treatment based 16 on her gender, a hostile work environment, and unlawful retaliation for her 17 complaints about the foregoing. 1We assume the parties’ familiarity with the 18 underlying facts, the procedural history, and the issues on appeal, to which we refer 19 only as necessary to explain our decision. 20

1 Because “New York courts require the same standard of proof for claims brought under the NY[S]HRL as for those brought under Title VII,” we analyze these claims in tandem throughout this order. Leopold v. Baccarat, Inc. , 174 F.3d 261, 264 n.1 (2d Cir. 1999).
2A. Adverse Action Claims 1 To establish a prima facie case of intentional discrimination under Title VII 2 or the NYSHRL, a plaintiff must show that “(1) [s]he is a member of a protected 3 class; (2) [s]he was qualified for the positi on [s]he held; (3) [s]he suffered an adverse 4 employment action; and (4) the adverse action took place under circumstances 5 giving rise to an inference of discrimination.” Reynolds v. Barrett , 685 F.3d 193, 6 202 (2d Cir. 2012) (internal quotation marks and alteration omitted). Under the 7 familiar McDonnell Douglasburden-shifting framework, once a plaintiff establishes 8

a prima facie case, the burden shifts to the employer to provide a legitimate non9 discriminatory reason for the employment action at issue. SeeReeves v. Sanderson 10 Plumbing Prods., Inc. , 530 U.S. 133, 142 (2000). If the defendant makes this 11 showing, the burden then shifts back to th e plaintiff to show that the defendant’s 12 proffered explanation is pretextual. Ruiz v. County of Rockland , 609 F.3d 486, 492 13 (2d Cir. 2010). 14 In attempting to demonstrate Pfizer’s alleged discriminatory animus, 15 plaintiff points to the conduct of only one Pfizer employee, Scott Welch, who was 16 plaintiff’s supervisor from 1997 through 1999 and then again from 2005 through 17
2006. She explains that along with his hostile behavior in the workplace (described 18 further below), Welch told her in September 2005 that “when women get married 19 and have children, their priorities change and they don’t work as hard.” J.A. 875. 20 This statement, she argues, presents “direct” evidence of Welch’s discriminatory 21

3animus towards women (or married women in particular), 2and thus supports an 1 inference of discrimination on the part of Pfizer. She fails, however, to offer 2 evidence sufficient to establish that she was subject to any adverse employment 3 actions resulting from Welch’s conduct. Any of the adverse actions that plaintiff’s 4 evidence suggests she did suffer are too disconnected from Welch to plausibly be 5 tainted by his alleged animus. 6 In support of her adverse action claims, plaintiff points to two promotions she 7 sought in 2006 but did not receive: first, for a position as Cleveland Assistant 8 Regional Manager, and second, for a position as a Senior Specialty Sales 9 Representative. 3Even assuming plaintiff did state a prima facie case regarding 10 either of these asserted adverse actions, she has failed as a matter of law to 11 demonstrate that any of the reasons provided by defendant for these failures to 12 promote is pretextual. 13

2Plaintiff did not explicitly raise a “gender plus” claim in her complaint. Even if we were inclined to find that she implicitly alleged that she was discriminated against based on her gender and another characteristic ( i.e.,her status as a married woman), see Gorzynski v. JetBlue Airways Corp. , 596 F.3d 93, 109 (2d Cir. 2010), any such claim would fail for the same reasons as her gender discri mination claim fails, that there is simply not enough in the record to connect Welch withany of the adverse actions experienced by plaintiff.

3 In the district court, plaintiff allege d that in 2002 she was denied two other promotions for discriminatory reasons. Pl aintiff’s Title VII and NYSHRL “failure to promote” claims based on conduct occurring in 2002 are time-barred. See42 U.S.C. § 2000e-5(e)(1); N.Y. C.P.L.R. § 214; see alsoChin v. Port Auth. of N.Y. & N.J. , 685 F.3d 135, 157 & n.11 (2d Cir. 2012).
4With regard to the Cleveland Assistant Regional Manager position, 4plaintiff 1 alleges that she applied for and was interviewed for this position, but she does not 2 provide any evidence about who made the decision not to offer her the position or 3 who ultimately was offered the job. She alleges that “she was informed that she did 4 not get this position because she needed the support of all local managers which 5 would have included, among others, Scott Welch,” implying that she did not have 6 Welch’s support and was denied the position, in part, for that reason. J.A. 838. But 7 no record evidence suggests that Welch was at all involved in the decision to deny 8 her this position. 9 Plaintiff’s claims based on Pfizer’s failure to offer her a Specialty Sales 10 Representative position also fail. Although Pfizer named a male sales 11 representative to this position, plaintiff has not provided any evidence contradicting 12 Welch’s deposition testimony that this representative had a consistently higher 13 sales ranking than plaintiff, and that Welch – once again, the only Pfizer employee 14 about whom plaintiff has proffered any evidence of discriminatory animus – played 15 no direct part in the decision not to promote plaintiff to this position. 16 In light of plaintiff’s inability to establish any connection between Welch and 17 either of these failures to promote, and plaintiff’s below-average work performance, 18 the only reasonable conclusion to be drawn from the evidence is that plaintiff was 19 denied these promotions because of her inferior sales record. There is therefore 20

4Pfizer denies that such a position ever existed, but on review of summary judgment against her, we must resolve all factual disputesin plaintiff’s favor. We thus assume that, as plaintiff alleges, she applied fo r this position and was rejected. 5nothing in the record that “reasonably supports a finding of prohibited 1 discrimination,” James v. N.Y. Racing Ass’n , 233 F.3d 149, 154 (2d Cir. 2000). 2 Plaintiff also complains that employees were evaluated based on both “sales 3 numbers” (as measured relative to quotas set by corporate decisionmakers) and 4 “sales behavior” (as measured through ob servations made by supervisors such as 5 Welch). This evidence suggests that during the years Welch supervised her, 6 plaintiff was evaluated in part based on Welch’s reviews. But plaintiff does not 7 dispute that her sales rankings ( i.e., her sales performance relative to her quotas as 8 measured against the same figure for other sales representatives) were consistently 9 below average. Moreover, she cannot overcome documentary evidence 10 demonstrating that her supervisors between 1999 and 2005 – who did not include 11 Welch – gave her negative reviews. See, e.g. , id. at 152 (holding that plaintiff’s 12 claim failed as a matter of law despite his prima facie showing, because 13 “overwhelming” evidence supported defendant’s proffered explanation). In sum, 14 drawing all reasonable inferences in plaintiff’s favor, there is no genuine dispute as 15 to any material fact with respect to either of the two adverse employment actions 16 plaintiff alleges that is suffici ent to defeat summary judgment. 17 B. Hostile Work Environment Claims 18 To withstand a defendant’s motion for summary judgment on hostile work 19 environment claims, a plaintiff must “proffer sufficient evidence to allow a trier of 20 fact to find disparate treatment based on gender, resulting in a hostile working 21 environment that was sufficiently severe or pervasive to alter the conditions of the 22 [plaintiff’s] employment.” Pucino v. Verizon Commc’ns, Inc. , 618 F.3d 112, 117 (2d 23 Cir. 2010) (internal quotation marks omitted). 24

6Here, plaintiff alleges that she was subjected to an abusive workplace 1 environment as a result of Welch’s conduct. In support of this claim, plaintiff 2 alleges, inter alia , that Welch falsely accused her of antagonizing her customers and 3 lying about her schedule; interfered with the distribution of product samples to her; 4 reduced her budget for educational programs; assigned her a less-desirable sales 5 territory than similarly-situated male sale s representatives; screamed at her; and 6 subjected her to more frequent field-visit supervisions, for which he provided less 7 warning than he did similarly-situated male sales representatives. Plaintiff also 8 avers that Welch often socialized with male representatives, but that he never did 9 the same with female representatives. Furthermore, plaintiff asserts that in the 10 months leading up to her wedding in 2005, Welch made the comment described 11 above about married women. Plaintiff also testified that Welch “threatened [her] 12 never to go to” Pfizer’s human resources department to complain about his conduct. 13 J.A. 856. 14 Even accepting these allegations as true, there is not enough in the record for 15 plaintiff to avoid summary judgment on he r hostile work environment claims. The 16 alleged incidents of harassment affecting plaintiff directly, with the exception of 17 Welch's comment about married women and Welch’s socializing preferences, were 18 “facially sex-neutral,” Alfano v. Costello , 294 F.3d 365, 377 (2d Cir. 2002). “Facially 19 neutral incidents may be included . . . among the ‘totality of the circumstances’ that 20 courts consider in any hostile work environment claim, so long as a reasonable fact21 finder could conclude that they were in fact, based on sex.” Id. at 378. But the 22

7record here does not support a finding that Welch’s objectionable conduct toward 1 plaintiff was based on sex. Indeed, the bulk of the evidence supports the conclusion 2 that, whether they were male or female , Welch treated the employees he disliked 3 poorly. Moreover, much of plaintiff’s disagreement with Welch during the period 4 from September 2005 through February 2006 focused on Welch’s allegedly favorable 5 treatment of another female sales representative. In sum, although plaintiff’s 6 allegations suggest that Welch was unpleasant, rude, and a poor manager, the 7 record provides an insufficient basis for a reasonable jury to conclude that his 8 mistreatment of plaintiff was based on her gender. 9 In support of her hostile work environment claim, plaintiff cites the 10 testimony of a former Pfizer employee, Bernadette Donovan, who was also 11 supervised by Welch but who left Pfizer’s employ in 1997. Donovan testified that 12 Welch treated men more favorably than women, and that Welch threatened her 13 with termination if she ever complained about him to more senior managers at 14 Pfizer. But even crediting Donovan’s account of Welch’s conduct through 1997, 15 Welch appears to have treated plaintiff favorably at times between 1997 and 1999, 16 when he first supervised her. For example, plaintiff testified that in 1998, Welch 17 told her she had been doing a “superior job” and transferred her “to his number one 18 territory.” J.A. 853. Moreover, the te mporal separation between the environment 19 confronting Donovan in 1997 and 2005, when Welch again supervised plaintiff, 20 undermines the reasonable import of Donovan’s testimony. Donovan’s testimony, 21 therefore, does not alter our analysis of plaintiff’s hostile work environment claim. 22

8C. Retaliation Claims 1 Finally, plaintiff’s retaliation claims alsofail as a matter of law. To make out 2

a prima facie case of retaliation, plaintiff must establish “(1) participation in a 3 protected activity; (2) that the defendant knew of the protected activity; (3) an 4 adverse employment action; and (4) a causal connection between the protected 5 activity and the adverse employment action.” Hicks v. Baines , 593 F.3d 159, 164 6 (2d Cir. 2010) (internal quotation marks omitted). The same three-step burden7 shifting framework that is applicable to discrimination claims also applies to 8 retaliation claims. SeeEl Sayed v. Hilton Hotels Corp. , 627 F.3d 931, 932-33 (2d 9 Cir. 2010) (per curiam). 10 Plaintiff asserts that she engaged in two separate “protected activities.” 11 First, she reported Welch’s behavior to another manager, Dan Callahan, in 12 September 2005; and second, she made a formal report about his conduct to Pfizer’s 13 Human Resources Department in February 2006. Plaintiff points to a number of 14 acts of alleged retaliation occurring after these complaints, including that she was 15 not permitted to mentor employees after February 2006; she was denied a merit 16 raise in May 2006; and she was drug tested in 2006. Defendant’s rejoinder is that 17 some of these actions were a consequence of plaintiff’s poor work performance and 18 others resulted from systematic corporate policies that could not possibly have been 19 tied to plaintiff’s complaints. 20 Even if the temporal proximity between plaintiff’s protected activity and the 21 events giving rise to plaintiff’s complaints is close enough to establish a prima facie 22

9case of retaliation, plaintiff has not proffered sufficient evidence under the three1 step burden-shifting framework for a reasonable fact-finder to conclude that any of 2 defendant’s proffered reasons were pretextual. Id. at 933. Summary judgment was 3 thus appropriate on the retaliation claims as well. As discussed above, there is 4 substantial evidence and no genuine dispute in the record that plaintiff was a 5 below-average sales representative, as me asured by sales rankings. Finally, with 6 regard to plaintiff being drug-tested in 2006, she does not dispute that Pfizer’s 7 policies provided for random drug-testing and that no one from her district was 8 involved in the decision to subject her to a drug test. 9 We have considered plaintiff’s remaining arguments and find them to be 10 without merit. Accordingly, the judgment of the district court is AFFIRMED

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12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15
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