13-4509-cv
Cummings-Fowler v. Suffolk Cnty. Cmty. Coll.

                                  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 16th
day of December, two thousand fourteen.

PRESENT:           JOSÉ A. CABRANES,
                   RICHARD C. WESLEY,
                   PETER W. HALL,
                                Circuit Judges.


MICHELLE CUMMINGS-FOWLER,

                   Plaintiff-Appellant,

                             v.                                      No. 13-4509-cv

SUFFOLK COUNTY COMMUNITY COLLEGE,
JAMES CANNIFF, RICHARD BRITTON,

                   Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                              RICK OSTROVE, Leeds Brown Law, P.C.,
                                                      Carle Place, NY.

FOR DEFENDANTS-APPELLEES:                             CHRISTOPHER M. GATTO, Assistant County
                                                      Attorney, for Dennis M. Brown, Suffolk
                                                      County Attorney, Hauppauge, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Arthur D. Spatt, Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff Michelle Cummings-Fowler appeals from the District Court’s November 6, 2013
entry of summary judgment in favor of defendants on plaintiff’s claims of hostile work environment,
employment discrimination, and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e (“Title VII”), and 42 U.S.C. § 1983. We assume the parties’ familiarity with the
underlying facts and the procedural history of the case, to which we refer only as necessary to
explain our decision.

                                          BACKGROUND

        On September 9, 2009, plaintiff served a complaint against her employer, Suffolk County
Community College (“SCCC”), and her supervisors, alleging hostile work environment and
employment discrimination. On September 28, 2009, SCCC hired plaintiff’s estranged husband,
Darryl Fowler, as a part-time test proctor, despite knowing that plaintiff had two orders of
protection against Fowler. Fowler’s start date was October 5, 2009. Unbeknownst to SCCC,
however, on September 29, 2009, plaintiff obtained a third order of protection prohibiting Fowler
from going near her home or place of work.

        In October 2009, plaintiff learned of Fowler’s hiring and informed SCCC of the third order
of protection. On October 19, 2009, SCCC sent Fowler a letter stating that he was being terminated
because of the third order of protection. SCCC shared the letter with plaintiff before sending it to
Fowler.

         Fowler received the termination letter on October 20, 2009. That same day, after receiving
the letter, Fowler broke into plaintiff’s home and shot her ten times, grievously injuring her. Fowler
ultimately pleaded guilty to attempted murder and was sentenced to twenty years’ imprisonment.

        On April 26, 2012, plaintiff filed a second amended complaint, adding a retaliation claim
against SCCC for hiring Fowler and for terminating him in such a way that he would blame plaintiff.
On November 4, 2013, the District Court granted summary judgment in favor of defendants on all
claims because, among other reasons, there was insufficient evidence of discriminatory or retaliatory
intent. On appeal, plaintiff challenges only the District Court’s dismissal of her retaliation claim
against SCCC, and only with respect to the manner in which SCCC terminated Fowler’s
employment.

                                           DISCUSSION

       We review a grant of summary judgment de novo, viewing the facts “in the light most
favorable to the non-moving party and draw[ing] all reasonable inferences in that party’s favor.” Cox
v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is appropriate

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where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

         Retaliation claims under Title VII follow the familiar burden-shifting analysis set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Rojas v. Roman Catholic Diocese of Rochester, 660
F.3d 98, 107 (2d Cir. 2011). If the plaintiff establishes a prima facie case of retaliation, then a
rebuttable presumption of retaliation arises and the burden shifts to the defendant to articulate a
“legitimate non-retaliatory” reason for the employment decision. El Sayed v. Hilton Hotels Corp., 627
F.3d 931, 932 (2d Cir. 2010). The burden then shifts back to the plaintiff to prove that her protected
activity “was a but-for cause of an adverse employment action[, for example,] by demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate
nonretaliatory reasons for its action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir.
2013).

       Upon de novo review of the record and relevant law, we conclude that the District Court
properly granted summary judgment in favor of SCCC on plaintiff’s retaliation claim. Although the
circumstances surrounding the shooting of plaintiff by her estranged husband are tragic, on this
record we cannot say that a reasonable jury could find SCCC liable for a retaliation claim under Title
VII.

                                          CONCLUSION

       We have considered all of the arguments raised by plaintiff on appeal and find them to be
without merit. For the reasons stated above, the November 6, 2013 judgment of the District Court
is AFFIRMED.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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