     13-1376
     Piasecki v. Shinseki

                            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 18th day of February, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Bonnie Piasecki,
13                Plaintiff-Appellant,
14
15       Irene Prevorse, Jan Hensel,
16                Plaintiffs,
17
18                    -v.-                                               13-1376-cv
19
20       Eric Shinseki, Secretary, Department
21       of Veterans Affairs,
22                Defendant-Appellee.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANT:                        JEFFREY WICKS, Jeffrey Wicks,
26                                             PLLC, Rochester, New York.
27


                                                  1
 1   FOR APPELLEE:              MICHAEL S. CERRONE, Assistant
 2                              United States Attorney, (Jane B.
 3                              Wolfe, Assistant United States
 4                              Attorney, on the brief), for
 5                              William J. Hochul, Jr., United
 6                              States Attorney, Western
 7                              District of New York, Buffalo,
 8                              New York.
 9
10        Appeal from a judgment of the United States District
11   Court for the Western District of New York (Arcara, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Bonnie Piasecki appeals from the final judgment of the
18   United States District Court for the Western District of New
19   York (Arcara, J.), granting summary judgment in favor of the
20   Department of Veteran Affairs (“VA”) on Piasecki’s Title VII
21   (42 U.S.C. § 2000e, et seq.) retaliation claims. On appeal,
22   Piasecki argues that the evidence is sufficient to permit a
23   reasonable jury to find that she was fired from her nursing
24   assistant position at the VA for complaining about sexual
25   harassment by a co-worker and not, as the VA claims, for
26   lying under oath during an administrative investigation and
27   inappropriate workplace behavior. We assume the parties’
28   familiarity with the underlying facts, the procedural
29   history, and the issues presented for review.
30
31        The district court’s grant of summary judgment is
32   reviewed de novo. See Gonzalez v. City of Schenectady, 728
33   F.3d 149, 154 (2d Cir. 2013). “Summary judgment is
34   appropriate if there is no genuine dispute as to any
35   material fact and the moving party is entitled to judgment
36   as a matter of law.” Id. In making this determination, we
37   “resolve all ambiguities and draw all permissible factual
38   inferences in favor of the party against whom summary
39   judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137
40   (2d Cir. 2003) (internal quotation marks omitted). Summary
41   judgment is appropriate “[w]here the record taken as a whole
42   could not lead a rational trier of fact to find for the
43   non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
44   Radio Corp., 475 U.S. 574, 587 (1986).
45

                                  2
 1        Retaliation claims are governed by the McDonnell
 2   Douglas Corp. v. Green burden-shifting framework. See 411
 3   U.S. 792, 802-4 (1973). Once an employer asserts a non-
 4   retaliatory reason for a termination, the employer “will be
 5   entitled to summary judgment unless the plaintiff can point
 6   to evidence” that reasonably supports a finding of
 7   retaliation. Dawson v. Bumble & Bumble, 398 F.3d 211, 216
 8   (2d Cir. 2005) (ellipsis and citation omitted).
 9
10        In the district court, Piasecki conceded “that [the VA]
11   has articulated a clear, legitimate and non-retaliatory
12   reason for terminating [Piasecki], i.e. the [Administrative
13   Board of Investigation]’s intervening findings against
14   [Piasecki] after she complained about sexual harassment
15   against Pontillo five months earlier.” Plaintiff’s
16   Objections to M.J. Scott’s Report & Recommendation at 9,
17   Piasecki v. Shinseki, No. 10-cv-208 (W.D.N.Y. Dec. 29,
18   2012), ECF No. 47 (“Objections to R&R”). However, Piasecki
19   offered evidence that “the proposed removal in February 2009
20   and the actual removal in May 2009 occurred in close
21   proximity of time to [Piasecki’s] protected activity,” and
22   argued that this was sufficient to show that the VA’s stated
23   reason was mere pretext. Id. at 10-11.
24
25        “The temporal proximity of events may give rise to an
26   inference of retaliation for the purposes of establishing a
27   prima facie case of retaliation under Title VII, but without
28   more, such temporal proximity is insufficient to satisfy
29   appellant’s burden to bring forward some evidence of
30   pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931,
31   933 (2d Cir. 2010). Although Piasecki asserted that the
32   board “elect[ed] to focus on [Piasecki], the victim[], and
33   not Pontillo, the perpetrator,” Objections to R&R at 10, her
34   evidence does not support this claim. Moreover, Piasecki
35   does not dispute the board’s findings that her oral
36   statements during the investigation, made under oath,
37   contradicted her earlier statements in numerous respects.
38
39        Piasecki’s reliance on Gilooly v. Missouri Department
40   of Health & Senior Services, 421 F.3d 734 (8th Cir. 2005),
41   is unavailing. Gilooly held that a retaliation claim
42   survives summary judgment when the employer’s stated reason
43   for disciplinary action was simply that it disbelieved the
44   employee’s discrimination complaint. Even assuming (without
45   deciding) that holding was correct, that court distinguished

                                  3
 1   a case in which the employer “found a clearer record of
 2   deception and detailed the basis for such findings.” Id. at
 3   741. Here, the VA conducted a lengthy investigation and
 4   laid out extensive evidence of Piasecki’s deception, as well
 5   as evidence of significant workplace misconduct. Piasecki
 6   offers no meaningful rebuttal of the VA’s findings and no
 7   evidence that those findings were pretextual.
 8
 9        For the foregoing reasons, and finding no merit in
10   Piasecki’s other arguments, we hereby AFFIRM the judgment of
11   the district court.
12
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16




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