Green v. Mount Sinai Health System, Inc.

19-3336 (L)
Green v. Mount Sinai Health System, Inc., et al

                               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.



       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
22nd day of October, two thousand twenty.

Present:      ROSEMARY S. POOLER,
              RAYMOND J. LOHIER, JR.,
              WILLIAM J. NARDINI,
                          Circuit Judges.
        _____________________________________________________

DAVID GREEN,

                                   Plaintiff-Appellant,

                          v.                                                 19-3336-cv
                                                                             19-3417-cv
MOUNT SINAI HEALTH SYSTEM, INC., JAIRO MCZENO,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:           Michael J. Confusione, Hegge & Confusione, LLC, Mullica Hill,
                                   NJ.


Appearing for Appellee:            Rory J. McEvoy, Akerman LLP (Brittany A. Buccellato, on the
                                   brief), New York, NY.

Appeal from the United States District Court for the Southern District of New York (Caproni,
J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said district court be AFFIRMED.

        Appellant David Green appeals from the September 12, 2019 judgment of the United
States District Court for the Southern District of New York (Caproni, J.), granting summary
judgment for Appellees Mount Sinai Health System, Inc. (“Mount Sinai”) and Jairo McZeno
(collectively, “Appellees”). We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

       We review a grant of summary judgment de novo, viewing “the evidence in the light
most favorable to the party opposing summary judgment, draw[ing] all reasonable inferences in
favor of that party, and eschew[ing] credibility assessments.” Smith v. Barnesandnoble.com,
LLC, 

839 F.3d 163

, 166 (2d Cir. 2016) (citation, alterations, and internal quotation marks
omitted).

        “Title VII prohibits employers from retaliating against any employee because that
individual has opposed any practice made unlawful by Title VII.” Ya-Chen Chen v. City Univ. of
N.Y., 

805 F.3d 59

, 70 (2d Cir. 2015) (internal citation, alterations, and quotation marks omitted).
In assessing Title VII and New York State Human Rights Law (“NYSHRL”) retaliation claims,
the Court applies the three-step burden-shifting framework first articulated in McDonnell
Douglas Corporation v. Green, 

411 U.S. 792

(1973). See Ya-Chen 

Chen, 805 F.3d at 70

; see
also Zann Kwan v. Andalex Grp., LLC, 

737 F.3d 834

, 843 (2d Cir. 2013) (explaining that both
federal and state law retaliation claims are reviewed under McDonnell Douglas). “[T]o make out
a prima facie case of retaliation, a plaintiff must show participation in protected activity known
to the defendant, an employment action disadvantaging the person engaged in the protected
activity, and a causal connection between the protected activity and the adverse employment
action.” Johnson v. Palma, 

931 F.2d 203

, 207 (2d Cir. 1991). New York City Human Rights
Law (“NYCHRL”) “requires an independent analysis.” Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 

715 F.3d 102

, 109 (2d Cir. 2013). Courts should “analyze NYCHRL claims separately
and independently from any federal and state law claims,” and construe those provisions
“broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably
possible.”

Id. (citation omitted). We

agree with the district court that the only protected activities at issue were Green’s
2008 and 2017 filings with EEOC. We have repeatedly held that generalized grievances about an
unpleasant or even harsh work environment, without more, do not reasonably alert an employer
of discriminatory conduct and therefore fail to rise to the level of protected activity. See, e.g.,
Rojas v. Roman Catholic Diocese of Rochester, 

660 F.3d 98

, 108 (2d Cir. 2011) (affirming
dismissal where the “competent evidence in the record showed that any complaints [the plaintiff]
made were generalized”). Although a plaintiff “may prevail on a claim for retaliation even when
the underlying conduct complained of was not in fact unlawful,” the plaintiff’s “belief must be
reasonable and characterized by objective good faith.” Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 

716 F.3d 10

, 16 (2d Cir. 2013) (emphasis added) (citation omitted).
Other than the EEOC charges, Green’s other complaints fall into the category of generalized
employment complaints and are not allegations about unlawful discrimination.




                                                 2
        We also agree with the district court’s assessment regarding what constitutes a materially
adverse employment action. Federal and state employment law require that a plaintiff show a
materially adverse employment action and a causal nexus between the protected conduct and the
adverse employment action. See Hicks v. Baines, 

593 F.3d 159

, 164 (2d Cir. 2010). For an
employment change to qualify as a materially adverse employment change, it must be “more
disruptive than a mere inconvenience,” and adverse changes typically include “termination of
employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, [or] significantly diminished material responsibilities . . . .” Sanders v.
N.Y.C. Human Res. Admin., 

361 F.3d 749

, 755 (2d Cir. 2004) (internal quotation marks omitted).
Most of Green’s complained-of employment actions, such as informal criticism of his work or
denial of a vacation request, without more, do not constitute materially adverse employment
actions.

        In addition to showing the existence of a materially adverse employment action, a
plaintiff must demonstrate a causal nexus between the protected activity and the adverse
employment action. See 

Hicks, 593 F.3d at 164

. To show the inference of retaliation from
temporal proximity alone, the temporal proximity must be “very close,” and periods greater than
20 months, by themselves, suggest “no causality at all.” Clark Cty. Sch. Dist. v. Breeden, 

532 U.S. 268

, 273-74 (2001) (citation omitted). We agree with the district court’s conclusion that of
the three possible materially adverse actions, two of them—a March 2018 comment that Green
did not belong in the department and unspecified assignments to mandatory shifts—are too
attenuated or not temporally specific enough to create an inference of causation based on
temporal proximity. No evidence was presented to suggest a causal nexus on other grounds.

         Furthermore, even when a plaintiff establishes a prima facie case for retaliation, an
employer-defendant may rebut it by presenting a legitimate business justification for its
employment action. See Zann 

Kwan, 737 F.3d at 845

(“[A]fter the defendant has articulated a
non-retaliatory reason for the employment action, the presumption of retaliation arising from the
establishment of the prima facie case drops from the picture.” (citation omitted)). Although
“temporal proximity of events may give rise to an inference of retaliation for the purposes of
establishing a prima facie case of retaliation under Title VII . . . without more, such temporal
proximity is insufficient to satisfy appellant’s burden to bring forward some evidence of pretext.”
El Sayed v. Hilton Hotels Corp., 

627 F.3d 931

, 933 (2d Cir. 2010). Here, the district court
properly concluded that Green failed to rebut Appellees’ evidence that the reprimand Green
received in March 2017 was due to his unexplained absences and other misconduct. Green did
not meet his “burden” of showing that Appellees’ reasons were “in fact pretext for unlawful
[retaliation].” Abrams v. Dep’t of Pub. Safety, 

764 F.3d 244

, 251 (2d Cir. 2014) (citation
omitted). Therefore, the district court’s grant of summary judgment as to Green’s federal and
state retaliation claims was proper.

        The district court’s analyses of these issues were also proper under NYCHRL, which
requires plaintiffs to show that they opposed an employer’s retaliation, and that, “as a result, the
employer engaged in conduct that was reasonably likely to deter a person from engaging in such
action.” 

Mihalik, 715 F.3d at 112

(citation omitted). As discussed above, most of Green’s
complaints did not constitute protected activity, and to the extent any did, Appellees’ subsequent
actions were not causally connected to the activity. Although NYCHRL has been construed to be



                                                  3
slightly broader than federal and state law, it is nevertheless “not a general civility code,”

id. at 113,

and summary judgment was properly granted for Appellees on this claim as well.

        We have considered the remainder of Green’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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