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 (WITH THE NOTATION ASUMMARY 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 22nd 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 New 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 District 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 University (“Upstate”), in his Title VII retaliation 

lawsuit. Mitchell, represented by counsel in district court, alleged that between his 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 summary 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 court’s grant of summary judgment 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 the light most favorable to the non-movant, ‘there 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. Civ. P. 56(a)). A party 

cannot overcome summary judgment, however, by relying on “‘mere speculation or conjecture as 

to the true nature of the facts’” because “‘conclusory 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) (alteration in original) (quoting Fletcher v. Atex, Inc., 68 

F.3d 1451, 1456 (2d Cir. 1995)). 

To sustain a prima facie case of retaliation under Title VII, a plaintiff must demonstrate 

“(1) [he] was engaged in protected activity; (2) the employer was aware of that activity; (3) the 

employee suffered a materially adverse action; and (4) there was a causal connection between the 

protected activity and that 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 retaliation, the burden shifts to the 

defendant employer to articulate “a legitimate, non-discriminatory 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 plaintiff 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 occurred 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 magistrate 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 proffered by Upstate for the various adverse actions 

were pretextual, let alone that retaliation was a but-for cause of the actions. We therefore affirm 
4 

for substantially the reasons given by the magistrate judge in her thorough and well-reasoned 

March 17, 2017 decision. 

We have considered Mitchell’s remaining arguments 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