Bhatti v. Physician Affiliate Grp. of N.Y., P.C. ( 2022 )

21-2522
Bhatti v. Physician Affiliate Grp. of N.Y., P.C.
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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 9th day of December, two thousand twenty-two.
4
5 PRESENT:
6 AMALYA L. KEARSE,
7 MICHAEL H. PARK,
8 ALISON J. NATHAN,
9 Circuit Judges.
10 _____________________________________
11
12 HARJINDER BHATTI,
13
14 Plaintiff-Appellant,
15
16 v. 21-2522
17
18 PHYSICIAN AFFILIATE GROUP OF NEW
19 YORK, P.C.,
20
21 Defendant-Appellee.*
22
23 _____________________________________
24
25 FOR PLAINTIFF-APPELLANT: MATTHEW MARKS, Ricotta & Marks, P.C.,
26 Long Island City, NY (Thomas Ricotta, on
27 the brief).
28
29 FOR DEFENDANT-APPELLEE: PHILIP W. YOUNG, New York City Law
30 Department, New York, NY (Hon. Sylvia O.
31 Hinds-Radix, Richard Dearing, Clause S.
32 Platton, on the brief).
* The Clerk of Court is respectfully directed to amend the caption accordingly.
1 Appeal from a judgment of the United States District Court for the Eastern District of New
2 York (Irizarry, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Plaintiff Harjinder Bhatti sued Defendant Physician Affiliate Group of New York, P.C.
6 (“PAGNY”), alleging unlawful retaliation in violation of Title VII, the New York State Human
7 Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”) for
8 complaints Bhatti made about her former employer Corizon Health, Inc. (“Corizon”). Bhatti
9 worked for Corizon from 2001 to December 2015 as a physician at Rikers Island. In April 2014,
10 Bhatti filed an Equal Employment Opportunity Commission (“EEOC”) charge against Corizon,
11 alleging that Corizon discriminated against her because of her gender by not selecting her for a
12 Physician Central Intake role. In August 2015, Bhatti sued Corizon for gender discrimination,
13 and the parties settled in August 2016. See Bhatti v. Corizon Health, Inc., No. 15-cv-05044
14 (E.D.N.Y. dismissed Aug. 16, 2016). In January 2016, the City of New York’s transition of
15 medical management from Corizon to New York City Health + Hospitals went into effect, with
16 PAGNY taking over physician employment. On May 29, 2018, Bhatti filed this retaliation action
17 against PAGNY. Bhatti alleges that PAGNY retaliated against her because of her EEOC
18 complaint and lawsuit against Corizon by “(1) initially not offering her a position with PAGNY;
19 (2) issuing her two ‘negative’ evaluations; and (3) terminating her employment with PAGNY” at
20 the end of 2016. Special App’x at 10. The district court granted PAGNY’s motion for summary
21 judgment in full because Bhatti failed to establish a prima facie case for retaliation. We assume
2
1 the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
2 on appeal.
3 To show a prima facie case of retaliation under Title VII, the plaintiff must show: “1)
4 participation in a protected activity; 2) the defendant’s knowledge of the protected activity; 3) an
5 adverse employment action; and 4) a causal connection between the protected activity and the
6 adverse employment action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013)
7 (cleaned up). A defendant’s knowledge may be shown through either “general corporate
8 knowledge” of the protected activity or the defendant’s agents having knowledge of the protected
9 activity. See id. This framework also applies to retaliation claims under the NYSHRL. See
10 Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013).
11 Bhatti does not argue on appeal that PAGNY had general corporate knowledge of her
12 complaints. We thus consider this argument waived. See T.M. ex rel. A.M. v. Cornwall Cent.
13 Sch. Dist., 752 F.3d 145, 168 (2d Cir. 2014) (considering an argument forfeited where the parties
14 failed to brief it thoroughly on appeal); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
15 (“Issues not sufficiently argued in the briefs are considered waived and normally will not be
16 addressed on appeal.”).
17 The only question remaining is whether any of PAGNY’s agents had knowledge of Bhatti’s
18 complaints. Bhatti argues that circumstantial evidence establishes that her supervisor at Corizon
19 and later at PAGNY, Michael Latunji, knew about her EEOC complaint and lawsuit against
20 Corizon. The parties do not dispute that Bhatti never informed Latunji of either the EEOC charge
21 or lawsuit, that Latunji denied any knowledge of Bhatti’s complaints, and that Bhatti herself did
22 not know whether Latunji knew about the complaints. Still, Bhatti argues that (1) inconsistencies
23 in Latunji’s testimony, (2) the fact that she made allegations mentioning Latunji by name in the
3
1 Corizon lawsuit, and (3) the timing of the allegedly retaliatory actions support an inference that
2 Latunji knew about her complaints.
3 Bhatti’s arguments are insufficient to show knowledge under Title VII and the NYSHRL.
4 First, even if there were inconsistencies, Bhatti has not produced any evidence to rebut Latunji’s
5 testimony that he did not know about her complaints. See S. Katzman Produce Inc. v. Yadid, 999
6 F.3d 867, 877 (2d Cir. 2021) (“A party opposing summary judgment normally does not show the
7 existence of a genuine issue of fact to be tried merely by making assertions that are based on
8 speculation or are conclusory.”). Second, the fact that the EEOC charge and Corizon lawsuit
9 mention Latunji in an allegation is not enough to show Latunji’s knowledge. Bhatti conceded
10 that Latunji was never involved in the hiring process for the Physician Central Intake position that
11 was at issue in her EEOC charge. The Corizon lawsuit did not name Latunji as a party. Bhatti
12 argues that Corizon’s response to the lawsuit gives rise to an inference that Corizon must have
13 consulted or informed Latunji of the lawsuit. But Corizon’s answer to the complaint alone does
14 not permit a reasonable inference that Latunji was informed about a lawsuit by Bhatti against
15 Corizon. Third, Bhatti filed her EEOC charge against Corizon approximately eighteen months
16 before PAGNY made the allegedly retaliatory decision not to hire her and over two years before
17 PAGNY terminated her. 1 She filed the Corizon lawsuit approximately three months before
18 hearing of PAGNY’s decision and over a year before PAGNY terminated her. This timing does
19 not support an inference of knowledge, and, even if it did, it would barely support an inference of
20 causation. See, e.g., Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d
1Bhatti never alleges when PAGNY first informed her that she would not be hired. The record
indicates that Bhatti communicated with her union representative about PAGNY’s hiring decision on
November 30, 2015. We can infer that PAGNY informed Bhatti of the initial decision on or around
November 30, 2015.
4
1 545, 554–55 (2d Cir. 2001) (holding that two to three months was sufficient for an inference of
2 causation but noting that there is no bright-line rule).
3 On her NYCHRL claim, Bhatti has waived any arguments by failing to develop the claim
4 in her opening brief. See United States v. Botti, 711 F.3d 299, 313 (2d Cir. 2013) (“It is a settled
5 appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at
6 developed argumentation, are deemed waived.” (cleaned up)). Even assuming that Bhatti did not
7 waive her NYCHRL claim, she cannot show that “as a result” of her “action opposing her
8 employer’s discrimination,” PAGNY “engaged in conduct that was reasonably likely to deter a
9 person from engaging in such action.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715
10 F.3d 102, 112 (2d Cir. 2013). The NYCHRL still requires some awareness of the plaintiff’s
11 protected activities. See Lucio v. New York City Dep’t of Educ., 575 F. App’x 3, 5 n.2 (2d Cir.
12 2014); see also Brightman v. Prison Health Serv., Inc., 970 N.Y.S.2d 789, 792 (App. Div. 1st
13 Dep’t 2013) (analyzing whether there was awareness of plaintiff’s protected activities). As
14 discussed above, Bhatti has failed to show that PAGNY had any awareness of her Corizon
15 complaints. We thus affirm the district court’s grant of summary judgment on Bhatti’s Title VII,
16 NYSHRL, and NYCHRL claims.
17 * * *
18 We have considered all of Bhatti’s remaining arguments and find them to be without merit.
19 For the foregoing reasons, we AFFIRM the judgment of the district court.
20
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk of Court
5