18‐2083‐cv
Rodriguez‐Coss v. Barr
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.
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
3 City of New York, on the 26th day of June, two thousand nineteen.
4
5 PRESENT: DENNIS JACOBS,
6 RAYMOND J. LOHIER, JR.,
7 MICHAEL H. PARK,
8 Circuit Judges.
9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10 JACABED RODRIGUEZ‐COSS,
11
12 Plaintiff‐Appellant,
13
14 v. No. 18‐2083‐cv
15
16 WILLIAM P. BARR, United States Attorney
17 General,
18
19 Defendant‐Appellee.
20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
21 FOR APPELLANT: KEVIN G. LITTLE, Law Office of
22 Kevin G. Little, Fresno, CA.
23
1 FOR APPELLEE: KRUTI D. DHARIA, Assistant
2 United States Attorney, for
3 Craig Carpenito, United States
4 Attorney, District of New
5 Jersey, Newark, NJ.
6
7 Appeal from a judgment of the United States District Court for the District
8 of Connecticut (Vanessa L. Bryant, Judge).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
10 AND DECREED that the judgment of the District Court is AFFIRMED.
11 Jacabed Rodriguez‐Coss appeals from a judgment of the District Court
12 (Bryant, J.), dismissing her claims against the United States Attorney General for
13 discrimination and retaliation due to gender and parental status under Title VII
14 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and discrimination
15 under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. On appeal,
16 Rodriguez‐Coss challenges only the District Court’s dismissal of her claims for
17 gender discrimination and retaliation under Title VII. We assume the parties’
18 familiarity with the facts and record of the prior proceedings, to which we refer
19 only as necessary to explain our decision to affirm.
2
1 1. Discrimination
2 As part of her prima facie case, Rodriguez‐Coss had to show that she
3 suffered an adverse employment action, defined as “a materially adverse change
4 in the terms and conditions of employment.” Vega v. Hempstead Union Free
5 Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (quotation marks omitted). Rodriguez‐
6 Coss claims in part that she was discriminated against when she was assigned to
7 United States v. Stone, a capital case in the Eastern District of California, and her
8 supervisors proved unwilling to transfer the case to another attorney or to
9 otherwise accommodate her needs. Although “the assignment of a
10 disproportionately heavy workload can constitute an adverse employment
11 action,” id. (quotation marks omitted), there was no evidence on summary
12 judgment that Rodriguez‐Coss’s continued assignment to Stone resulted in a
13 disproportionately heavy workload. First, an uncontested summary chart for
14 fiscal years 2008 to 2014 showed that Rodriguez‐Coss traveled less than many of
15 the other male and female trial attorneys in the Capital Case Section.1 Second,
1 Rodriguez‐Coss argues that the District Court should have excluded this chart
because the underlying records had not been made available for review during
discovery. But Rodriguez‐Coss did not present any evidence that she asked for the
3
1 Rodriguez‐Coss agreed that she was able to take on another case before she was
2 assigned to Stone. Accordingly, we agree with the District Court that
3 Rodriguez‐Coss has failed to demonstrate that her allegedly heavy workload
4 constituted an adverse employment action.
5 Next, even assuming that Rodriguez‐Coss made a prima facie case for
6 discrimination with respect to the Flexiplace Agreement and letter of reprimand,
7 her discrimination claim fails under the third step of McDonnell Douglas, where
8 “the plaintiff’s admissible evidence must show circumstances that would be
9 sufficient to permit a rational finder of fact to infer that the defendant’s
10 employment decision was more likely than not based in whole or in part on
11 discrimination.” Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016)
12 (quotation marks omitted). In light of Rodriguez‐Coss’s resistance to trying the
13 Stone case and the repeated criticisms she received from federal judges for failing
14 to meet court deadlines, we agree with the District Court that Rodriguez‐Coss
15 has failed to meet her burden.
underlying data, and the District Court did not abuse its discretion in considering the
chart.
4
1 2. Retaliation
2 Rodriguez‐Coss also argues that the District Court mistakenly concluded
3 that the summer of 2012 was the only time she complained of being denied
4 accommodations based on her gender. She states that her complaints extended
5 through the fall of 2013 and are therefore temporally proximate to the decisions
6 relating to her Flexiplace Agreement and her reprimand. But temporal
7 proximity alone is ordinarily “insufficient to satisfy [plaintiff’s] burden” at the
8 third McDonnell Douglas stage. El Sayed v. Hilton Hotels Corp., 627 F.3d 931,
9 933 (2d Cir. 2010). Rodriguez‐Coss failed to adduce sufficient evidence that
10 “the desire to retaliate was the but‐for cause of the challenged employment
11 action[s].” Ya‐Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015)
12 (quotation marks omitted).
13 We have considered Rodriguez‐Coss’s remaining arguments and conclude
14 that they are without merit. For the foregoing reasons, the judgment of the
15 District Court is AFFIRMED.
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk of Court
5