Harrison v. United States Postal Service

10-3665-cv
Harrison v. United States Postal Service

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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of December, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
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13 WILLIAM K. HARRISON,
14
15 Plaintiff-Appellant,
16
17 -v.- 10-3665-cv
18
19 UNITED STATES POSTAL SERVICE,
20
21 Defendant-Appellee,
22
23 JOHN E. POTTER, POSTMASTER GENERAL,
24 Defendant-Appellee.
25
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27

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 1 FOR APPELLANT: Christopher Bellistri,
2 Cronin & Byczek LLP
3 Lake Success, NY
4
5 FOR APPELLEES: James Nicholas Boeving, Jeannette A.
6 Vargas, Sarah S. Normand, Assistant United
7 States Attorneys, for Preet Bharara,
8 United States Attorney,
9 Southern District of New York,
10 New York, NY
11
12
13 Appeal from a judgment of the United States District
14 Court for the Southern District of New York (Daniels, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the district court’s judgment is AFFIRMED.
18
19 William K. Harrison appeals the district court’s grant
20 of summary judgment dismissing Harrison’s claims of unlawful
21 retaliation under Title VII of the Civil Rights Act of 1964.
22 We assume the parties’ familiarity with the underlying
23 facts, the procedural history, and the issues presented for
24 review.
25
26 We review a grant of summary judgment de novo and draw
27 all inferences in favor of the nonmoving party. El Sayed v.
28 Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per
29 curiam). “Summary judgment is appropriate only if the
30 movant shows that there is no genuine dispute as to any
31 material fact and the movant is entitled to judgment as a
32 matter of law.” Id. (internal quotation marks omitted). A
33 genuine issue of fact exists if “the evidence is such that a
34 reasonable jury could return a verdict for the nonmoving
35 party.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)
36 (internal quotation marks omitted).
37
38 Retaliation claims are governed by the three-step
39 burden-shifting framework set forth by the Supreme Court in
40 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
41 First, the plaintiff bears the burden of proving by the
42 preponderance of the evidence a prima facie case of
43 discrimination. In the retaliation context, this requires
44 the plaintiff to show (1) that he participated in protected

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 1 activity, (2) that he suffered an adverse employment action
2 and (3) that a causal connection exists between the
3 protected activity and the adverse employment action. See
4 Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d
5 Cir. 2010). If the plaintiff can make out a prima facie
6 case of retaliation, the burden then shifts to the defendant
7 to produce evidence that the adverse employment action was
8 taken “for a legitimate, nondiscriminatory reason.” St.
9 Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)
10 (internal quotation marks omitted). If the defendant meets
11 its burden of production, the plaintiff must then prove, by
12 a preponderance of the evidence, that the legitimate
13 nondiscriminatory reason proffered by the defendant is
14 pretextual, and that the true reason for the adverse
15 employment action was the plaintiff’s protected activity.
16 See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
17 248, 256 (1981).
18
19 [1] Harrison argues that he applied for and was denied a
20 number of promotions on account of his protected EEO
21 activity. But he has failed to present any evidence of a
22 causal connection between the alleged denials and his
23 protected activity. The only evidence Harrison has
24 presented from which an inference of causation may be drawn
25 is the temporal proximity between his EEO activity and the
26 denial of his promotions. However, even “[t]he cases that
27 accept mere temporal proximity between an employer’s
28 knowledge of protected activity and an adverse employment
29 action as sufficient evidence of causality to establish a
30 prima facie case uniformly hold that the temporal proximity
31 must be very close.” Clark Cnty. Sch. Dist. v. Breeden, 532
32 U.S. 268, 273 (2001) (per curiam) (internal quotation marks
33 omitted). In Harrison’s case, all of the job vacancies in
34 question closed at least several months (and in most cases
35 considerably longer) after Harrison engaged in protected
36 activity. This evidence, therefore, is insufficient to
37 support the necessary causal connection.
38
39 [2] Harrison next claims that he suffered retaliation
40 when Freddie Burroughs, his wife’s harasser, was transferred
41 into Harrison’s unit. However, as Harrison has previously
42 conceded, Burroughs was transferred before Harrison first
43 engaged in protected activity by testifying at his wife’s
44 EEOC hearing in November, 1995.

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2 [3] Harrison claims that he was subjected to retaliation
3 when he was denied differential pay after serving for a two-
4 week period as Acting Manager of Distribution Operations
5 (“AMDO”) while the Manager of Distribution Operations was on
6 vacation. Harrison’s temporary stint as an AMDO occurred
7 before Harrison first contacted an EEO counselor or filed an
8 EEO complaint of his own. Thus, a retaliation claim would
9 have to be based on his testimony at his wife’s EEOC hearing
10 in November, 1995. But the temporal gap of almost two years
11 between the date of this protected activity and the alleged
12 retaliation is too great to give rise to an inference of
13 causation. See Burkybile v. Bd. of Educ., 411 F.3d 306, 314
14 (2d Cir. 2005) (finding no causation where more than a year
15 passed between protected activity and alleged retaliation).
16 As Harrison has failed to present any other evidence of
17 causation, no reasonable jury could find that Harrison was
18 denied differential pay as a result of his protected
19 activity.
20
21 [4] Harrison argues that he again suffered retaliation
22 when he was transferred from the Automation Unit to the
23 Transportation Unit in November of 1997. But the
24 antiretaliation provision of Title VII covers only those
25 employer actions that a reasonable employee would consider
26 materially adverse. Burlington N. & Santa Fe R.R. Co. v.
27 White, 548 U.S. 53, 57 (2006). “Whether a particular
28 reassignment is materially adverse depends upon the
29 circumstances of the particular case, and should be judged
30 from the perspective of a reasonable person in the
31 plaintiff’s position . . . .” Id. at 71 (internal quotation
32 marks omitted). Harrison has failed to raise a genuine
33 issue of fact on this point. Several Postal Service
34 managers testified at deposition that familiarity with
35 transportation is a useful skill for someone seeking
36 advancement and that a number of employees were promoted
37 after having worked in the Transportation Unit. Harrison
38 has presented no evidence, beyond conclusory statements, to
39 the contrary.
40
41 [5] Finally, Harrison argues that he was retaliated against
42 when he was given only a short four-month detail in the
43 Quality Unit while some other employees received longer
44 details. The allegedly short duration of Harrison’s detail

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 1 does not constitute a materially adverse employment action.
2 A detail is a discretionary and temporary assignment, and
3 Harrison concedes that very few supervisors were permitted
4 to go on detail at all. A reasonable person would not find
5 that being given a discretionary and favorable assignment,
6 even if for a short period of time, was materially adverse.
7 See, e.g., Forkkio v. Tanoue, 131 F. Supp. 2d 36, 42 (D.D.C.
8 2001) (holding that the expiration of a plaintiff’s
9 temporary promotion was not an adverse employment action
10 because “plaintiff did not lose a term or condition of
11 employment to which he had anything but a temporary
12 entitlement”). Therefore, the Government was entitled to
13 summary judgment on this claim as well.
14
15 We have considered plaintiff’s remaining arguments and
16 find them to be without merit. For the foregoing reasons,
17 the judgment of the district court is hereby AFFIRMED.
18
19
20
21 FOR THE COURT:
22 CATHERINE O’HAGAN WOLFE, CLERK
23

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