     12-4279
     Adams v. Yale New Haven Hosp.

                          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 12th day of March, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DENNY CHIN,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Clark Adams,
13                Plaintiff-Appellant,
14
15                    -v.-                                               12-4279-cv
16
17       Yale New Haven Hospital,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        WILLIAM S. PALMIERI, Law Offices
22                                             of William S. Palmieri, LLC, New
23                                             Haven, Connecticut.
24
25       FOR APPELLEE:                         PATRICK M. NOONAN, Donahue,
26                                             Durham, & Noonan, P.C.,
27                                             Guilford, Connecticut.
28

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the District of Connecticut (Fitzsimmons, M.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        Plaintiff Clark Adams appeals from the final judgment
 9   of the United States District Court for the District of
10   Connecticut (Fitzsimmons, M.J.), dismissing his claims of
11   race discrimination, sex discrimination, and retaliation
12   under Title VII (42 U.S.C. § 2000e) and the Connecticut Fair
13   Employment Practices Act (“CFEPA”) against Yale New Haven
14   Hospital (“Hospital”). The district court dismissed some of
15   the plaintiff’s sex discrimination claims, and all of his
16   race discrimination claims, by granting a directed verdict
17   to the defendant at the close of the plaintiff’s evidence.
18   Following the jury’s verdict in favor of the plaintiff on
19   the remaining sex discrimination claims, the district court
20   granted judgment as a matter of law (“JMOL”) in favor of the
21   defendant pursuant to Federal Rule of Civil Procedure 50(b)
22   but ordered a new trial as to those claims pursuant to Rule
23   50(b)(2). The district court then permitted the defendant
24   to move for summary judgment on those sex discrimination
25   claims and ultimately granted the defendant’s motion.
26
27        The district court’s grant of summary judgment is
28   reviewed de novo. See Gonzalez v. City of Schenectady, 728
29   F.3d 149, 154 (2d Cir. 2013). “Summary judgment is
30   appropriate if there is no genuine dispute as to any
31   material fact and the moving party is entitled to judgment
32   as a matter of law.” Id. In making this determination, we
33   “resolve all ambiguities and draw all permissible factual
34   inferences in favor of the party against whom summary
35   judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137
36   (2d Cir. 2003) (internal quotation marks and citation
37   omitted). Summary judgment is appropriate “[w]here the
38   record taken as a whole could not lead a rational trier of
39   fact to find for the non-moving party.” Matsushita Elec.
40   Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
41   (1986).
42
43        A trial court may set aside a jury’s verdict pursuant
44   to Federal Rule of Civil Procedure 50(b) only where “there
45   is such a complete absence of evidence supporting the
46   verdict that the jury’s findings could only have been the
47   result of sheer surmise or conjecture, or there is such an

                                  2
 1   overwhelming amount of evidence in favor of the movant that
 2   reasonable and fair minded men could not arrive at a verdict
 3   against him.” Bucalo v. Shelter Island Union Free Sch.
 4   Dist., 691 F.3d 119, 127-28 (2d Cir. 2012) (internal
 5   quotation marks omitted). The district court’s ruling on a
 6   motion for JMOL is also reviewed de novo. Ehrlich v. Town
 7   of Glastonbury, 348 F.3d 48, 52 (2d Cir. 2003). “A directed
 8   verdict is granted only when, viewing the evidence in the
 9   light most favorable to the non-moving party, there can be
10   but one conclusion as to the verdict that reasonable persons
11   could have reached.” Id. (internal quotation marks
12   omitted).
13
14   1.   Discrimination Claims. Adams, an African-American man,
15   was a Physician Associate (“PA”) in the Hospital’s
16   Department of Surgery. Two women, Rita Rienzo and Heather
17   Orosco, were the other PAs in the department. In a
18   reorganization triggered by an accreditor’s adverse finding,
19   all three were notified that the Hospital planned to hire
20   twelve new PAs and that, thereafter, all PAs would have to
21   be periodically on-call. Adams decided to leave the Surgery
22   Department rather than accept on-call responsibilities and
23   transferred to the Department of Medicine.
24
25        Six weeks later, the Hospital announced the creation of
26   an administrative position, Lead PA, to deal with the staff
27   increase. No one applied for the position, which included
28   on-call responsibilities. Shortly thereafter, Orosco quit.
29   Rienzo, who then became the only experienced PA in the
30   Surgery Department, negotiated to accept the Lead PA
31   position on terms that allowed her to avoid taking call.
32
33        Adams claims that the Hospital discriminated against
34   him in (1) forcing him out of the Surgery Department while
35   allowing Rienzo and Orosco to avoid taking call; and (2)
36   declining to offer him the Lead PA position without on-call
37   responsibilities. To establish a prima facie case of
38   discrimination in violation of Title VII, “a claimant must
39   show that: 1) he belonged to a protected class; 2) he was
40   qualified for the position; 3) he suffered an adverse
41   employment action; and 4) the adverse employment action
42   occurred under circumstances giving rise to an inference of
43   discriminatory intent.” Terry, 336 F.3d at 138. The same
44   analysis applies to the CFEPA claims. Kaytor v. Elec. Boat
45   Corp., 609 F.3d 537, 556 (2d Cir. 2010).
46


                                  3
 1        The circumstances surrounding Adams’ transfer to the
 2   Department of Medicine and Rienzo’s acceptance of the Lead
 3   PA position do not give rise to an inference of
 4   discrimination. It is undisputed that Orosco worked in the
 5   transplant service, which had different needs from the rest
 6   of the Department of Surgery, and that Orosco’s supervisor
 7   did not want her to take call. Once Adams transferred and
 8   Orosco quit, Rienzo, as the only experienced PA left, was
 9   the only candidate for the Lead PA position. There is
10   nothing here to raise an eyebrow.1
11
12        Furthermore, Adams was not “qualified” for the position
13   of Lead PA once he left the Department of Surgery. It is
14   the Hospital’s undisputed policy to offer a new position in
15   a department to employees within that department first,
16   before accepting other applications. Because Rienzo
17   accepted the Lead PA position, Adams was not entitled to an
18   opportunity to apply.
19
20   2.   Retaliation Claims. To establish a prima facie case of
21   retaliation in violation of Title VII, an employee must show
22   “(1) participation in a protected activity; (2) that the
23   defendant knew of the protected activity; (3) an adverse
24   employment action; and (4) a causal connection between the
25   protected activity and the adverse employment action.”
26   McMenemy v. City of Rochester, 241 F.3d 279, 282–83 (2d Cir.
27   2001). The same analysis applies to the CFEPA claims.
28   Kaytor, 609 F.3d at 556.
29
30        While Adams did complain to his supervisors about the
31   new on-call requirement, he has not demonstrated a causal
32   connection between those complaints and an adverse
33   employment action. His protected activity--i.e. his
34   complaints--did not precipitate a forced transfer. To the
35   contrary, Adams voluntarily chose to transfer rather than
36   accept on-call duties.
37


         1
           Adams testified that another PA, Christopher Mallory,
     also transferred out of the Department of Surgery to avoid
     on-call duties. This does not impact the analysis, because
     the different treatment allegedly accorded Orosco and Rienzo
     was due to particular circumstances, and not their sex. In
     any event, the fact that Mallory--a white man--transferred
     to avoid taking call, undercuts Adams’ claims of race
     discrimination.

                                  4
 1        For the foregoing reasons, and finding no merit in
 2   Adams’ other arguments, we hereby AFFIRM the judgment of the
 3   district court.
 4
 5
 6
 7                              FOR THE COURT:
 8                              CATHERINE O’HAGAN WOLFE, CLERK
 9
10
11




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