Piasecki v. Shinseki , 555 F. App'x 88 ( 2014 )

13-1376
Piasecki v. Shinseki
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of February, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 DEBRA ANN LIVINGSTON,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
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12 Bonnie Piasecki,
13 Plaintiff-Appellant,
14
15 Irene Prevorse, Jan Hensel,
16 Plaintiffs,
17
18 -v.- 13-1376-cv
19
20 Eric Shinseki, Secretary, Department
21 of Veterans Affairs,
22 Defendant-Appellee.
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24
25 FOR APPELLANT: JEFFREY WICKS, Jeffrey Wicks,
26 PLLC, Rochester, New York.
27
1
1 FOR APPELLEE: MICHAEL S. CERRONE, Assistant
2 United States Attorney, (Jane B.
3 Wolfe, Assistant United States
4 Attorney, on the brief), for
5 William J. Hochul, Jr., United
6 States Attorney, Western
7 District of New York, Buffalo,
8 New York.
9
10 Appeal from a judgment of the United States District
11 Court for the Western District of New York (Arcara, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17 Bonnie Piasecki appeals from the final judgment of the
18 United States District Court for the Western District of New
19 York (Arcara, J.), granting summary judgment in favor of the
20 Department of Veteran Affairs (“VA”) on Piasecki’s Title VII
21 (42 U.S.C. § 2000e, et seq.) retaliation claims. On appeal,
22 Piasecki argues that the evidence is sufficient to permit a
23 reasonable jury to find that she was fired from her nursing
24 assistant position at the VA for complaining about sexual
25 harassment by a co-worker and not, as the VA claims, for
26 lying under oath during an administrative investigation and
27 inappropriate workplace behavior. We assume the parties’
28 familiarity with the underlying facts, the procedural
29 history, and the issues presented for review.
30
31 The district court’s grant of summary judgment is
32 reviewed de novo. See Gonzalez v. City of Schenectady, 728
33 F.3d 149, 154 (2d Cir. 2013). “Summary judgment is
34 appropriate if there is no genuine dispute as to any
35 material fact and the moving party is entitled to judgment
36 as a matter of law.” Id. In making this determination, we
37 “resolve all ambiguities and draw all permissible factual
38 inferences in favor of the party against whom summary
39 judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137
40 (2d Cir. 2003) (internal quotation marks omitted). Summary
41 judgment is appropriate “[w]here the record taken as a whole
42 could not lead a rational trier of fact to find for the
43 non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
44 Radio Corp., 475 U.S. 574, 587 (1986).
45
2
1 Retaliation claims are governed by the McDonnell
2 Douglas Corp. v. Green burden-shifting framework. See 411
3 U.S. 792, 802-4 (1973). Once an employer asserts a non-
4 retaliatory reason for a termination, the employer “will be
5 entitled to summary judgment unless the plaintiff can point
6 to evidence” that reasonably supports a finding of
7 retaliation. Dawson v. Bumble & Bumble, 398 F.3d 211, 216
8 (2d Cir. 2005) (ellipsis and citation omitted).
9
10 In the district court, Piasecki conceded “that [the VA]
11 has articulated a clear, legitimate and non-retaliatory
12 reason for terminating [Piasecki], i.e. the [Administrative
13 Board of Investigation]’s intervening findings against
14 [Piasecki] after she complained about sexual harassment
15 against Pontillo five months earlier.” Plaintiff’s
16 Objections to M.J. Scott’s Report & Recommendation at 9,
17 Piasecki v. Shinseki, No. 10-cv-208 (W.D.N.Y. Dec. 29,
18 2012), ECF No. 47 (“Objections to R&R”). However, Piasecki
19 offered evidence that “the proposed removal in February 2009
20 and the actual removal in May 2009 occurred in close
21 proximity of time to [Piasecki’s] protected activity,” and
22 argued that this was sufficient to show that the VA’s stated
23 reason was mere pretext. Id. at 10-11.
24
25 “The temporal proximity of events may give rise to an
26 inference of retaliation for the purposes of establishing a
27 prima facie case of retaliation under Title VII, but without
28 more, such temporal proximity is insufficient to satisfy
29 appellant’s burden to bring forward some evidence of
30 pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931,
31 933 (2d Cir. 2010). Although Piasecki asserted that the
32 board “elect[ed] to focus on [Piasecki], the victim[], and
33 not Pontillo, the perpetrator,” Objections to R&R at 10, her
34 evidence does not support this claim. Moreover, Piasecki
35 does not dispute the board’s findings that her oral
36 statements during the investigation, made under oath,
37 contradicted her earlier statements in numerous respects.
38
39 Piasecki’s reliance on Gilooly v. Missouri Department
40 of Health & Senior Services, 421 F.3d 734 (8th Cir. 2005),
41 is unavailing. Gilooly held that a retaliation claim
42 survives summary judgment when the employer’s stated reason
43 for disciplinary action was simply that it disbelieved the
44 employee’s discrimination complaint. Even assuming (without
45 deciding) that holding was correct, that court distinguished
3
1 a case in which the employer “found a clearer record of
2 deception and detailed the basis for such findings.” Id. at
3 741. Here, the VA conducted a lengthy investigation and
4 laid out extensive evidence of Piasecki’s deception, as well
5 as evidence of significant workplace misconduct. Piasecki
6 offers no meaningful rebuttal of the VA’s findings and no
7 evidence that those findings were pretextual.
8
9 For the foregoing reasons, and finding no merit in
10 Piasecki’s other arguments, we hereby AFFIRM the judgment of
11 the district court.
12
13
14 FOR THE COURT:
15 CATHERINE O’HAGAN WOLFE, CLERK
16
4