18‐687‐cv
DʹAndrea v. Nielsen
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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING 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 5th day of April, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
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LEONARDO DʹANDREA,
Plaintiff‐Appellant,
v. 18‐687‐cv
KIRSTJEN M. NIELSEN, Secretary, Department of
Homeland Security,
Defendant‐Appellee.
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FOR PLAINTIFF‐APPELLANT: ALAN E. SCHOENFELD (Sharon Cohen
Levin, Jack Zarin‐Rosenfeld, Swapna Maruri,
Michael J. Morillo, on the brief), Wilmer Cutler
Pickering Hale and Dorr LLP, New York, New
York.
FOR DEFENDANT‐APPELLEE: STEPHEN CHA‐KIM, Assistant United States
Attorney (Christopher Connolly, Assistant
United States Attorney, on the brief), for
Geoffrey S. Berman, United States Attorney for
the Southern District of New York, New York,
New York.
Appeal from the United States District Court for the Southern District of
New York (Hellerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN
PART and VACATED IN PART, and the matter is REMANDED for further
proceedings.
Plaintiff‐appellant Leonardo DʹAndrea, a Senior Special Agent in the
Department of Homeland Security (ʺDHSʺ), appeals the district courtʹs January 12, 2018
judgment granting summary judgment in favor of defendant‐appellee Elaine Duke, the
then‐Acting Secretary of DHS, on DʹAndreaʹs retaliation and hostile work environment
claims against DHS under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e
et seq. The district court explained its reasoning in an order entered January 11, 2018.
We assume the partiesʹ familiarity with the underlying facts, procedural history, and
issues on appeal.
The following facts are viewed in the light most favorable to DʹAndrea.
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013).1 Since
1 Some of these facts are taken from DʹAndreaʹs second amended verified complaint. A
verified pleading that contains ʺallegations on the basis of the plaintiffʹs personal knowledge,
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2001, DʹAndrea has been employed by DHS and its predecessor agency. In 2008,
DʹAndrea was a witness in two employment discrimination proceedings brought by his
coworkers against DHS. On May 5, 2008, DʹAndrea testified in court in one of the
proceedings. A few months later, in July or August 2008, DʹAndrea participated in
another coworkerʹs action by submitting answers to a written questionnaire.
DʹAndrea alleges that DHS engaged in two acts of retaliation against him
because he participated in these actions. First, in March 2010, DHS removed DʹAndrea
as a case agent on an investigation that he initiated and developed. Second, on April 4,
2010, DHS suspended DʹAndrea for six days because of an April 2007 incident at the
John F. Kennedy International Airport (ʺJFK Airportʺ) in which he drew his firearm on
two civilians.
In addition, DʹAndrea alleges that DHS created a hostile work
environment by: passing him over for the position of acting supervisor in favor of a
more junior agent; failing to assist DʹAndrea after he reported hostile treatment by his
then‐supervisor Thomas Mulhall; suspending him for six days for the JFK Airport
incident; suspending him for twelve days for taking leave without permission;
assigning a parking spot to a more junior agent that should have been assigned to him
and not merely on information and belief, has the effect of an affidavit and may be relied on to
oppose summary judgment.ʺ Patterson v. Cty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004).
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based on seniority; mandating he work six calendar days in a row; and altering his
work schedule without consultation or reasonable advance notice.
On February 22, 2017, DʹAndrea filed his second amended complaint,
alleging that DHS violated Title VII by retaliating against him and creating a hostile
work environment. On January 11, 2018, the district court granted summary judgment
in favor of DHS, dismissing the second amended complaint. Judgment was entered
January 12, 2018. This appeal followed.
STANDARD OF REVIEW
ʺWe review de novo the district courtʹs grant of summary judgment,
construing the evidence in the light most favorable to the non‐moving party and
drawing all reasonable inferences in [his] favor.ʺ Mihalik, 715 F.3d at 108. Summary
judgment is appropriate only if ʺthere is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). ʺEven in
the discrimination context, . . . a plaintiff must provide more than conclusory allegations
. . . and show more than some metaphysical doubt as to the material facts.ʺ Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks omitted).
DISCUSSION
This appeal presents two issues: whether the district court properly
granted summary judgment as to (1) the retaliation claim and (2) the hostile work
environment claim. We analyze each issue in turn.
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I. Retaliation
A. Applicable Law
Title VII retaliation claims are generally reviewed under the three‐step,
burden‐shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). First, the plaintiff must
establish a prima facie case of retaliation by showing: (1) he participated in a protected
activity; (2) the defendant knew of the protected activity; (3) there was ʺan adverse
employment actionʺ; and (4) there was ʺa causal connection between the protected
activity and the adverse employment action.ʺ Id. at 844 (internal quotation marks
omitted). The plaintiff has the burden of proof at this step, but the burden is ʺminimal.ʺ
Id. (internal quotation marks omitted).
Second, if the plaintiff establishes a prima facie case, ʺthe burden shifts to
the employer to articulate some legitimate, non‐retaliatory reason for the employment
action.ʺ Id. at 845. Lastly, if the defendant proffers a legitimate, non‐retaliatory reason
for the adverse action, the burden shifts back to the plaintiff to show that the
defendantʹs reason is ʺa mere pretext for retaliation.ʺ Id. The plaintiff also ʺmust show
that retaliation was a ʹbut‐forʹ cause of the adverse action, and not simply a ʹsubstantialʹ
or ʹmotivatingʹ factor in the employerʹs decision.ʺ Id. (citing Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 348 (2013)). This but‐for reason need not be the only cause for the
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employerʹs action; however, the plaintiff must show that ʺthe adverse action would not
have occurred in the absence of the retaliatory motive.ʺ Id. at 846.
ʺThe ultimate burden of persuading the trier of fact that the defendant
intentionally [retaliated] against the plaintiff remains at all times with the plaintiff,ʺ
Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (alteration
omitted) (quoting St. Maryʹs Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)), and on
summary judgment, ʺthe governing standard is simply whether the evidence, taken as a
whole, is sufficient to support a reasonable inference that prohibited [retaliation]
occurred,ʺ James v. N.Y. Racing Assʹn, 233 F.3d 149, 156 (2d Cir. 2000).
B. Application
DʹAndrea argues that DHS retaliated against him for participating in his
coworkersʹ employment actions by (1) suspending him for six days and (2) removing
him as a case agent. DʹAndrea challenges the district courtʹs conclusion that he failed to
make out a prima facie case of retaliation, and that he failed to show that DHSʹs reasons
for its actions were pretextual.
Here, DʹAndrea has failed to establish a prima facie case because he has
not presented sufficient evidence to permit a jury to find a causal connection between
his protected activity and his suspension and removal. Causation can be proven (1)
directly ʺthrough evidence of retaliatory animus directed against the plaintiff by the
defendantʺ; or (2) indirectly either (a) ʺby showing that the protected activity was
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followed closely by discriminatory treatment,ʺ or (b) ʺthrough other circumstantial
evidence such as disparate treatment of fellow employees who engaged in similar
conduct.ʺ Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). DʹAndrea has
not provided evidence of retaliatory animus or non‐speculative evidence that his fellow
employees were treated differently for engaging in similar conduct.
Moreover, causation cannot be inferred from the temporal relationship of
DʹAndreaʹs suspension and removal and his protected activity. While we have declined
to draw ʺa bright line to define the outer limits beyond whichʺ temporal proximity may
be established, we have generally held that causation can only be inferred after the
passage of a few weeks or months, Gorman‐Bakos v. Cornell Coop. Extension of Schenectady
Cty., 252 F.3d 545, 554 (2d Cir. 2001) (collecting cases), and have held that a delay of
more than a year is fatal to a showing of causation, see, e.g., Cortes v. MTA New York City
Transit, 802 F.3d 226, 233 (2d Cir. 2015) (refusing to infer causation based on 14‐month
gap); Burkybile v. Bd. of Educ. of the Hastings‐On‐Hudson Union Free Sch. Dist., 411 F.3d
306, 314 (2d Cir. 2005) (same based on a delay of more than a year). Here, DʹAndrea
engaged in protected activity in May 2008 and July or August 2008. DʹAndrea was not
removed as a case agent until March 2010, and he was not suspended until April 2010.
Because nearly two years passed between DʹAndreaʹs protected activity and DHSʹs
adverse actions, we cannot reasonably infer a causal nexus and thus his prima facie case
fails.
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Even assuming DʹAndrea met his minimal burden of establishing a prima
facie case of retaliation, as required under McDonnell Douglas, DʹAndreaʹs retaliation
claim still fails. DHS has articulated ʺlegitimate, non‐discriminatory reason[s]ʺ for
suspending DʹAndrea (the JFK Airport incident) and for removing DʹAndrea as a case
agent (his late submission of investigation reports). We therefore turn to the ultimate
question of whether DʹAndrea has adduced sufficient evidence from which a reasonable
factfinder could conclude that he was retaliated against because of his protected activity.
We hold that DʹAndrea has failed to present evidence from which a
reasonable jury could conclude either that DHSʹs reasons were pretextual and that
discriminatory retaliation occurred or that any retaliation was the ʺbut‐forʺ cause of his
suspension and removal. Nassar, 570 U.S. at 360; Gordon, 232 F.3d at 117‐18. DHS
suspended DʹAndrea for his April 2007 actions at the JFK Airport. DʹAndrea argues
that DHSʹs reason for his suspension is pretextual because he claims the investigation
into the JFK Airport incident was flawed for not interviewing ʺkey witnessesʺ and
ʺpicked up steam only when it became clear that DʹAndrea was going to testify against
[DHS].ʺ Appellantʹs Br. at 22‐23. It is undisputed, however, that DʹAndrea drew his
weapon on two civilians and that the investigation of the incident included interviews
of at least six witnesses, including four eyewitnesses, as well as interviews of, and a
written submission by, DʹAndrea. Nor was the investigation completely ʺdormantʺ
prior to April 2008, as DʹAndrea alleges. The matter was referred for administrative
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inquiry in April 2007, and DHS formally assigned agents to investigate in September
2007. On November 27, 2007, the investigators interviewed DʹAndrea about the
incident. Thus, the investigation was well underway at the time DʹAndrea engaged in
protected activity.
DʹAndrea argues that his direct supervisor, Steven Yagoda, and four other
agents with ʺvaluable contemporaneous knowledge of [his] conduct,ʺ should have been
interviewed. Appellantʹs Br. at 23.2 Aside from Yagoda, none of the witnesses
submitted an affidavit to support DʹAndreaʹs statements. Moreover, while Yagoda
submitted an affidavit that ʺ[t]here was no improper use of force,ʺ Appʹx. at 1278,
neither he nor any of the other witnesses identified by DʹAndrea had personal
knowledge of the incident because they were not present at JFK Airport at that time, see
Patterson, 375 F.3d at 219 (ʺAffidavits submitted . . . in opposition to the summary
judgment motion must be made on personal knowledge . . . .ʺ (internal quotation marks
omitted)). DʹAndrea, therefore, merely speculates that his witnesses would have
provided exculpatory evidence. See DʹAmico v. City of New York, 132 F.3d 145, 149 (2d
Cir. 1998) (ʺThe non‐moving party may not rely on mere . . . speculation, but instead
must offer some hard evidence showing that its version of the events is not wholly
2 The other individuals DʹAndrea believes should have been interviewed include: Acting Group
Supervisor Donald Swiatocha, Acting Assistant Special Agent‐in‐Charge (ʺSACʺ) Raymond Barrett,
Deputy SAC Mona Forman, and Acting Deputy SAC James Modico. SAC Modico, however, was in fact
interviewed on May 9, 2008.
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fanciful.ʺ). Furthermore, ʺ[t]emporal proximity alone is insufficient to defeat summary
judgment at the pretext stage.ʺ Zann Kwan, 737 F.3d at 847.
In addition, DʹAndrea argues that DHSʹs reason for removing him as a
case agent ‐‐ i.e., because his reports of investigation were late ‐‐ is pretextual because
(1) there is a dispute as to whether he violated a DHS policy; (2) he was never
reprimanded and never received a negative performance review before he was
removed; and (3) no other employees were removed for filing late reports of
investigation. DʹAndrea admitted, however, that two supervisors had warned him
about the timeliness of his reports of investigation, including multiple warnings for a
case that started in September 2009 ‐‐ i.e., the case from which he was removed.
DʹAndrea, moreover, admitted that he and his entire unit were on notice about
submitting reports because of criticism regarding the agencyʹs practices for reports of
investigation by the United States Attorneyʹs Office. In addition, while DʹAndrea
argues he was treated differently, he provides no evidence aside from his own
speculative statements that he was in fact treated differently. See DʹAmico, 132 F.3d at
149. DʹAndrea, therefore, has failed to provide evidence that his removal as a case
agent ʺwould not have occurred in the absence of the retaliatory motive.ʺ Zann Kwan,
737 F.3d at 846; see also Hicks, 509 U.S. at 515 (ʺ[A] reason cannot be proved to be ʹa
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pretext for discriminationʹ unless it is shown both that the reason was false, and that
[retaliation] was the real reason.ʺ (internal quotation marks omitted)).
Accordingly, we affirm dismissal of this claim.
II. Hostile Work Environment
We understand DʹAndrea to argue that DHS created a hostile work
environment in retaliation against him because he engaged in protected conduct. The
question is whether a plaintiff may assert an independent hostile work environment
claim alleging animus based on protected activity (as opposed to animus based on
membership in a protected class, see 42 U.S.C. § 2000e‐2), or whether the acts that would
formulate such a claim are part and parcel of the adverse employment action element of
a traditional retaliation claim, see 42 U.S.C. § 2000e‐3(a).
The parties have not briefed this issue, and the district court did not
discuss DʹAndreaʹs hostile work environment claim at all. We, therefore, conclude that
the claim is better addressed by the district court in the first instance. See United States
v. Gomez, 877 F.3d 76, 92 (2d Cir. 2017) (ʺIn general, a federal appellate court does not
consider an issue not passed on below.ʺ (internal quotation marks omitted)).
Accordingly, we remand this claim pursuant to United States v. Jacobson, 15 F.3d 19 (2d
Cir. 1994), for the district court to answer the following questions:
1. Whether there is an independent claim for a hostile
work environment under 42 U.S.C. § 2000e‐2 based on
retaliatory‐animus toward a plaintiffʹs protected
activity; and
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2. If so, whether the evidence adduced at summary
judgment in this case was sufficient for a reasonable
jury to find that DʹAndrea was subject to a hostile
work environment based on his protected activity.
We request that the district court address these issues as soon as
practicable, and that once the district court has decided these issues on remand, the
parties promptly notify the clerk of this Court, whereupon jurisdiction will be restored
to this Court and to this panel.
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Accordingly, we AFFIRM IN PART, VACATE IN PART, and REMAND
for further proceedings consistent with this order.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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