1 23

- 200 Giurca v. Bon Secours Charity Health Sys. et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED 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 FEDERAL 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 26 th day of February , two thousand twenty

- four

. 3 4 PRESENT: 5 BARRINGTON D. PARKER, 6 MYRNA PÉREZ, 7 SARAH A. L. MERRIAM, 8 Circuit Judges. 9

_____________________________________ 10 11 Dr. Dan Giurca
, 12 13 Plaintiff

- Appellant
, 14 15

v. No

. 23

- 200 16 17 Bon Secours Charity Health System, Westchester 18 County Health Care Corporation , Good Samaritan 19 Hospital
, 20 21 Defendant s

-

Appellee s

. * 22

________________________________ 23 24 25

* The Clerk of Court is respectfully directed to amend the official caption as set forth above.2 FOR PLAINTIFF

- APPELLANT : M ICHAEL H. S USSMAN ( Jonathan R. Goldman, on 1 the brief ) , Sussman & Goldman, Goshen, NY

. 2 3 FOR DEFENDANT S

- APPELLEE S : M ICHAEL J. K EANE ( Gillian Barkins, on the 4 brief )
, Garfunkel Wild, P.C., Great Neck, NY

. 5 6 Ap peal from a judgment of the United States District Court for the Southern District of 7

New York ( Seibel
, J .). 8

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 9

DECREED that the judgment of the district court is AFFIRMED

. 10

Plaintiff

- Appellant Dan Giurca seeks review of two district court rulings in favor of 11

Defendant s

- Appellees Good Samaritan Hospital ( “ Good Samaritan ” )
, Bon Secours Charity 12
Health System ( “ Bon Secours ” ) , and Westchester County Health Care Corporation 13
( “ WMCHealth ” ) 1 : ( 1 ) dismiss al of his religious discrimination and failure to accommodate 14

claim s under Title VII ; and ( 2 ) summary judgment on his retaliation claim under Title VII

. 15

For the reasons set forth below, we conclude that the district court did not err in 16
dismissing Giurca ’ s claims. We assume the parties ’ familiarity with the underlying facts, the 17
procedural history of the case, and the issues on appeal, which we reference only as necessary to 18
explain our decision to affirm. 19

I. Religious Discrimination and Failure to Accommodate 20
First, we conclude that the district court did not err in granting the Hospital Defendants ’ 21

motion to dismiss. 22

“ To survive a motion to dismiss under [Rule] 12(b)(6), a complaint must allege sufficient 23
facts, taken as true, to state a plausible claim for relief. ” Johnson v. Priceline.com, Inc. , 711 F.3d 24
271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555

– 56 (2007)). The 25

1 Defendant s

- Appellees will hereinafter be referred to as the “ Hospital Defendants

. ”3 Court is not required to credit “mere conclusory statements” or “[t]hreadbare recitals of the 1

elements of a cause of action.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 2
U.S. at 555). The Court reviews de novo the grant of a motion to dismiss under Rule 12(b)(6). 3

See Allaire Corp. v. Okumus , 433 F.3d 248, 249

– 50 (2d Cir. 2006)

. 4

“[I] n an employment discrimination case, a plaintiff must plausibly allege that (1) the 5
employer took adverse action against him and (2) his race, color, religion, sex, or national origin 6
was a motivating factor in the employment decision. ” Vega v. Hempstead Union Free School 7

Dist. , 801 F.3d 72, 86 ( 2d Cir. 2015)

. Plaintiff alleges, in a conclusory fashion, that the Hospital 8

D efendants “fail[ed] to process his employment applications by reason of Plaintiff’s religion.” 9

J oint App’x at 28. But he does not allege that the Hospital Defendants were aware of his 10
Romanian Orthodox religion, much less that they took any actions based upon that religion. His 11
religious discrimination claim therefore fails. 12

Moreover, with respect to reasonabl e accommodation claims, a plaintiff may satisfy their 13

minimal burden on a motion to dismiss by plausibly alleging that they: (1) “actually require[] an 14
accommodation of [his or her] religious practice”; and (2) that “the employer’s desire to avoid 15
the prospective accommodation [was] a motivating factor in [an employment] decision.” 16

Lowman v. NVI LLC , 821 F. App’x 29, 31 (2d Cir. 2020) (quoting EEOC v. Abercrombie & 17

Fitch Stores, Inc. , 575 U.S. 768, 773

– 74 (2015)). The Amended C omplaint does allege that 18

Defendants “ failed to accommodate Plaintiff’s request for a reasonable accommodation, relating 19
to modification of its standard employment agreement. ” J oint App’x at 28. But this is 20

insufficient to state a claim for failure to accommodate. It is not enough for plaintiff to assert 21

that he desired an accommodation ; he must plausibly allege that he actually required an 22
accommodation of his religious practice

— in other words, that his religious beliefs made such an 234 accommodation necessary. E ven accepting the sincerity of his religious beliefs, Giurca’s 1
Amended Complaint does not adequately plead a conflict between those beliefs and the alleged 2
employment requirement

— that Giurca agree that his employment be “subject to” and services be 3
“provided in accordance with” the Ethical and Religious Directives of the Roman Catholic 4
Church (“ERDs”)

. Joint App’x at 22. 5
In discussing an offer of employment with Bon Secours in 2017, Giurca was presented 6

with two contracts. The Professional Services Contract provided : 7

1.2 Standards. Physician agrees to ensure that the Services shall be provided in 8 accordance with: (i) the Ethical and Religious Directives for Catholic Health Care 9 Services promulgated by the United States Conference of Catholic Bishops, as 10 interpreted by the Sisters of Bon Secours

. . . . 11
Joint App’x at 47

. The Per Diem Contract provided: 12
Your employment is subject to the policies, procedures and guidelines of the PC 13 and Hospital, including but not limited to . . . the Ethical and Religious Directives 14 of the Roman Catholic Church. 15

Id. at 37 ¶ 4. 16

However, Giurca ’s Amended Complaint is devoid of any facts plausibly alleging that 17
signing either contract , and therefore agreeing that his employment would be “subject to” or that 18
he would provide services “ in accordance with” the ERDs
, would actually conflict with his 19
personal religious beliefs. Without sufficient allegations of a n actual conflict, Giurca has not 20

stated a “ plausible claim for relief ” as to his accommodation claim. Johnson , 711 F.3d at 275 21
( citing Twombly , 550 U.S. at 555

– 56 ). 22

II. Retaliation 23
We further conclude that the district court properly granted summary judgment on 24

Giurca’s claim for retaliation under Title VII. 255 On appeal, a court will affirm a grant of a motion for summary judgment only if, 1
construing the evidence in the light most favorable to the nonmoving party, “ there is no genuine 2
dispute as to any material fact and the movant is entitled to judgment as a matter of law. ” Fed. 3

R. Civ. P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return 4
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). 5

Like a grant of a motion to dismiss, the Court conducts a de novo review of a district court ’ s 6

grant of summary judgment. See Fabrikant v. French , 691 F.3d 193, 205 (2d Cir. 2012). 7
Retaliation claims are analyzed using the McDonnell Douglas burden

- shifting 8

framework. See Zann Kwan v. Andalex Grp. LLC , 737 F.3d 834, 843 (2d Cir. 2013) (citing 9
McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802

– 04 (1973)). The first step of the 10
McDonnell Douglas framework requires the plaintiff to establish a prima facie case of 11

retaliation. See i d. a t 844. “ Once the plaintiff has established a prima facie showing of 12
retaliation, the burden shifts to the employer to articulate some legitimate, non

- retaliatory reason 13

for the [ adverse ] employment action. ” Id. at 845

. If the defendant carries this burden, t he 14
plaintiff must then present evidence demonstrating that retaliation was a “but

- for” cause of the 15

adverse action

. Id. at 845. 16
Here, summary judgment was appropriate because, even if Giurca had adequately 17
established a prima facie case of retaliation, the Hospital Defendants presented legitimate, non

18
retaliatory reasons for their decision to not hire Giurca, and Giurca failed to carry his burden of 19
demonstrating that retaliation was the but

- for cause of the adverse employment action

. 20

A. Legitimate, Non

- Retaliatory Reasons 21

T he Hospital Defendants clearly identified “ legitimate, non

- retaliatory reason [ s ]” for 22
declining to hire Giurca. Zann Kwan , 737 F.3d at 845. When Giurca inquired about 236 employment with Good Samaritan in March 2019, t he hospital was not considering applications 1

for the consultant liaison position in which he expressed an interest

. Colavito

— the recruiter with 2
whom Giurca had been communicating

— then learned that Giurca had lied during his interview 3

about being presently employed at another hospital , despite having been terminated “due to 4

bizarre behavior.” Joint App’x at 1218. Due to his lack of candor, Colavito chose not to 5

consider Giurca for subsequent job openings. In July 2019 , a fter Giurca interviewed for a 6

consultant liaison position , the only position he expressed an interest in, at WMCHealt h
, Bartell 7

and Ferrando

— the decisionmakers

— recommended against hiring Giurca because he did not 8
have the necessary experience or certification s

. 9

B. But

- For Cause 10
Because the Hospital Defendants met their burden at the second step of the McDonnel l 11
Douglas framework, the burden then shifted to Giurca to demonstrate that retaliation was a but

12

for cause of their failure to hire him. But Giurca failed to do so

. 13

First, the record does not support Giurca’s assertion that the proffered reasons for hiring 14
another candidate for the consultant liaison position at Good Samaritan are pretextual

. B y the 15

time Giurca inquired about the position in March 2019, Good Samaritan had already extended an 16

offer of employment to Afful and his contracts were under review. 17
Second, Giurca’s challenge to WMCHealth’s conclusion that he was unqualified for the 18
consultant liaison position is similarly unavailing

. Although Afful was not board

- certified when 19
offered the consultant liaison position at Good Samaritan
, the consultant liaison position for 20
which Giurca was deemed unqualified was an entirely separate position at an entirely different 21
hospital. The record does not suggest that the position for which Afful was hired and the 227 position from which Giurca was rejected required the same qualifications, much less that the 1
Hospital Defendants chose to enforce qualifications for one position but not the other. 2
Finally, in the absence of other evidence of a retaliatory motive , the temporal proximity 3

between Giurca’s allegedly protected activity and the adverse employment action is insufficient 4

to support an inference of retaliation. See Ya

- Chen Chen v. City Univ. of N.Y. , 805 F.3d 59, 72 5
(2d Cir. 2015) (“‘[T]emporal proximity’ between a protected complaint and an adverse 6
employment action ‘is insufficient to satisfy [plaintiff’s] burden to bring forward some evidence 7
of pretext . . .

. ” (quoting El Sayed v. Hilton Hotels Corp. , 627 F.3d 931, 933 (2d Cir. 2010) (per 8
curiam)))

. We therefore conclude that Giurca failed to present sufficient evidence from which a 9
reasonable jury could conclude that retaliation was the but

- for cause for the decision to not hire 10

Giurca

. 11



### * * * 12
We have considered Giurca’s remaining arguments and find them to be without merit. 13
For the foregoing reasons, we AFFIRM the judgment of the district court. 14

15 16 FOR THE COURT: 17 Catherine O ’ Hagan Wolfe, Clerk of Court 18