17-860 Mitchell v. State of New York Upstate Med. Univ. 

## 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 FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 22 nd day of May, two thousand eighteen. PRESENT: JON O. NEWMAN, PETER W. HALL, SUSAN L. CARNEY, Circuit Judges.

__________________________________________ Robbie Mitchell, Plaintiff-Appellant , v. 17-860 State University of Ne w York Upstate Medical University, Defendant-Appellee .

__________________________________________ FOR PLAINTIFF-APPELLANT: Robbie Mitchell, pro se, Syracuse, NY. FOR DEFENDANT-APPELLEE: Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, Zainab A. Chaudhry, Assistant Solicitor General, for Barbara Underwood, Acting Attorney General for the State of New York, Albany, NY.2 Appeal from a judgment of the United States Di strict Court for the Northern District of New York (Dancks, M.J. ). 1
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Robbie Mitchell, proceeding pro se, appeals from a judgment in favor of his former employer, SUNY Upstate Medical Univers ity (“Upstate”), in his Title VII retaliation lawsuit. Mitchell, represented by counsel in district court, allege d that between hi s return from a 2012 suspension and the ultimate termination of his employment in 2015, Upstate engaged in various forms of retaliation for Mitchell’s having previously complained about race discrimination. A magistrate judge granted summar y judgment to Upstate, concluding that most of the complained-of actions were not materially adverse, and, in any event, Mitchell failed to demonstrate that retaliation was the but-for cause of the challenged actions. This appeal follows. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review a district cour t’s grant of summary judgmen t de novo, “resolv[ing] all ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t , 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing the evidence in th e light most favorable to the non-movant, ‘t here is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

1 The parties consented to the magistrate judge’s jurisdiction to conduct the proceedings and enter judgment in this case. See 28 U.S.C. § 636(c).3 Doninger v. Niehoff , 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Ci v. P. 56(a)). A party cannot overcome summary judgment, however, by rely ing on “‘mere speculation or conjecture as to the true nature of the fact s’” because “‘concluso ry allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.’” Hicks v.
Baines , 593 F.3d 159, 166 (2d Cir. 2010) (a lteration in original) (quoting Fletcher v. Atex, Inc. , 68 F.3d 1451, 1456 (2d Cir. 1995)). To sustain a prima facie case of retaliation unde r Title VII, a plaintiff must demonstrate “(1) [he] was engaged in protec ted activity; (2) the employer was aw are of that activity; (3) the employee suffered a materially adverse action; an d (4) there was a causal connection between the protected activity and th at adverse action.” Lore v. City of Syracuse , 670 F.3d 127, 157 (2d Cir. 2012). If the plaintiff makes out a prima facie case of retaliat ion, the burden shifts to the defendant employer to articulate “a legitimate, non-discriminato ry reason for its actions.” Kirkland v. Cablevision Sys. , 760 F.3d 223, 225 (2d Cir. 2014) (per curiam). “If the employer does so, the burden then shifts back to the plain tiff to show that the employer’s explanation is pretext for . . . retaliation.” Id. To meet that burden, the plaintiff must show “that the adverse action would not have occu rred in the absence of the retaliatory motive.” Kwan v. Andalex Grp.
LLC , 737 F.3d 834, 846 (2d Cir. 2013). Upon review, we conclude that the magistra te judge properly granted summary judgment to Upstate. Even assuming Mitchell could make out a prima facie case of retaliation, the record fails to show that the nonretaliatory reasons pr offered by Upstate for the various adverse actions were pretextual, let alone that retaliation was a but -for cause of the actions. We therefore affirm4 for substantially the reasons given by the magi strate judge in her t horough and well-reasoned March 17, 2017 decision. We have considered Mitchell’s remaining argu ments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court