Babarinsa v. Kaleida Health, Buffalo General Hospital

14-4555 Babarinsa v. Kaleida Health, Buffalo General Hospital 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 19th day of November, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 DEBRA ANN LIVINGSTON, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 SHARON BABARINSA, 13 Plaintiff-Appellant, 14 15 -v.- 14-4555 16 17 KALEIDA HEALTH, BUFFALO GENERAL 18 HOSPITAL 19 Defendant-Appellee. 20 - - - - - - - - - - - - - - - - - - - -X 21 22 FOR APPELLANT: HARVEY P. SANDERS, SANDERS & 23 SANDERS, Cheektowaga, New York. 24 25 FOR APPELLEE: AMY L. HEMENWAY, HARTER SECREST 26 & EMERY LLP, Buffalo, New York. 27 1 1 Appeal from a judgment of the United States District 2 Court for the Western District of New York (Skretny, J.). 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the judgment of the district court be 6 AFFIRMED. 7 8 Sharon Babarinsa appeals from the judgment of the 9 United States District Court for the Western District of New 10 York (Skretny, J.), granting summary judgment in favor of 11 defendant-appellee. We assume the parties’ familiarity with 12 the underlying facts, the procedural history, and the issues 13 presented for review. 14 15 “We review a district court’s grant of summary judgment 16 de novo, construing the evidence in the light most favorable 17 to the non-moving party and drawing all reasonable 18 inferences in its favor.” Allianz Ins. Co. v. Lerner, 416 19 F.3d 109, 113 (2d Cir. 2005). 20 21 1. Babarinsa chiefly contests the grant of summary 22 judgment dismissing her Title VII retaliation claims. Once 23 a defendant articulates a legitimate non-retaliatory reason 24 for an adverse employment action, the “presumption of 25 retaliation” aiding a plaintiff “dissipates,” and “the 26 plaintiff must prove ‘that the desire to retaliate was the 27 but-for cause of the challenged employment action.’” Ya- 28 Chen Chen v. City Univ. of N.Y., No. 14-1469, 2015 WL 29 6499909, at *8 (2d Cir. Oct. 28, 2015) (quoting Univ. of 30 Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528 (2013)). 31 Babarinsa has failed to present sufficient evidence for a 32 reasonable jury to find that Kaleida Health’s reasons here 33 are pretextual. First, as to the drop in Babarinsa’s charge 34 assignments in May 2009, Kaleida Health presented 35 uncontested evidence that the charging schedule was 36 generally equalized throughout the plaintiff’s shift during 37 this time period, and that several employees who did not 38 complain received larger decreases in their assignments than 39 Babarinsa. The undisputed record shows--and no reasonable 40 jury could find otherwise--that the June 25, 2009 verbal 41 warning to Babarinsa, and her temporary suspension from 42 charge assignments, were precipitated by Babarinsa’s verbal 43 altercation with another employee (while Babarinsa was 44 serving as a charge nurse) in violation of Kaleida Health’s 45 Standards of Personal Conduct Policy. The record further 46 demonstrates that, insofar as Babarinsa had fewer charge 47 assignments in the months following the end of her 2 1 suspension, they reflected either general variability in 2 charging assignments or continued complaints against her. 3 Indeed, Babarinsa received a February 16, 2010 written 4 warning that stemmed from her failure to provide pain 5 medication as ordered and her violation of patient 6 confidentiality and privacy rights. Finally, there is no 7 record evidence that the statement in Babarinsa’s 2010 8 annual assessment (on February 11, 2011)--that Babarinsa 9 “ha[d] improved in communication skills while in charge”-- 10 was pretextual. J.A. 118. 11 12 Babarinsa’s reliance on temporal proximity alone to 13 show pretext is misplaced; “[w]e have long held that 14 ‘temporal proximity’ between a protected complaint and an 15 adverse employment action is ‘insufficient to satisfy 16 [plaintiff’s] burden to bring forward some evidence of 17 pretext.’” Chen, 2015 WL 6499909, at *9 (quoting El-Sayed 18 v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010)) 19 (alteration in original). Further, her reliance on data 20 about charge hours is undermined by Kaleida Health’s 21 explanations for that data: not only that charge 22 assignments, generally, reflected a variety of important 23 administrative factors, but also that Babarinsa’s charging 24 assignments, specifically, reflected various aforementioned 25 disciplinary proceedings that began in June 2009. Thus, 26 this data, standing alone, is not evidence of pretext. The 27 district court correctly granted summary judgment on 28 Babarinsa’s retaliation claims. 29 30 2. With respect to Babarinsa’s Title VII 31 discrimination claims: because her employer provided non- 32 discriminatory reasons explaining both the distribution of 33 charge assignments prior to June 2009 and the disciplinary 34 action subsequently taken against Babarinsa, the presumption 35 in Babarinsa’s favor established by McDonnell Douglas Corp. 36 v. Green, 411 U.S. 792 (1973), “completely ‘drops out of the 37 picture.’” James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 38 (2d Cir. 2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 39 U.S. 502, 511 (1993)). Babarinsa has not raised a material 40 issue of fact as to whether these non-discriminatory 41 reasons--the inherent variability in charge assignments, 42 Babarinsa’s poor communication skills, and her violation of 43 Kaleida Health’s Standards of Personal Conduct Policy--were 44 pretextual. 45 3 1 For the foregoing reasons, and finding no merit in 2 Babarinsa’s other arguments, we hereby AFFIRM the judgment 3 of the district court. 4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 4