     14-4555
     Babarinsa v. Kaleida Health, Buffalo General Hospital

                          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 19th day of November, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       SHARON BABARINSA,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-4555
16
17       KALEIDA HEALTH, BUFFALO GENERAL
18       HOSPITAL
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        HARVEY P. SANDERS, SANDERS &
23                                             SANDERS, Cheektowaga, New York.
24
25       FOR APPELLEE:                         AMY L. HEMENWAY, HARTER SECREST
26                                             & EMERY LLP, Buffalo, New York.
27


                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Western District of New York (Skretny, 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        Sharon Babarinsa appeals from the judgment of the
 9   United States District Court for the Western District of New
10   York (Skretny, J.), granting summary judgment in favor of
11   defendant-appellee. We assume the parties’ familiarity with
12   the underlying facts, the procedural history, and the issues
13   presented for review.
14
15        “We review a district court’s grant of summary judgment
16   de novo, construing the evidence in the light most favorable
17   to the non-moving party and drawing all reasonable
18   inferences in its favor.” Allianz Ins. Co. v. Lerner, 416
19   F.3d 109, 113 (2d Cir. 2005).
20
21        1.  Babarinsa chiefly contests the grant of summary
22   judgment dismissing her Title VII retaliation claims. Once
23   a defendant articulates a legitimate non-retaliatory reason
24   for an adverse employment action, the “presumption of
25   retaliation” aiding a plaintiff “dissipates,” and “the
26   plaintiff must prove ‘that the desire to retaliate was the
27   but-for cause of the challenged employment action.’” Ya-
28   Chen Chen v. City Univ. of N.Y., No. 14-1469, 2015 WL
29   6499909, at *8 (2d Cir. Oct. 28, 2015) (quoting Univ. of
30   Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528 (2013)).
31   Babarinsa has failed to present sufficient evidence for a
32   reasonable jury to find that Kaleida Health’s reasons here
33   are pretextual. First, as to the drop in Babarinsa’s charge
34   assignments in May 2009, Kaleida Health presented
35   uncontested evidence that the charging schedule was
36   generally equalized throughout the plaintiff’s shift during
37   this time period, and that several employees who did not
38   complain received larger decreases in their assignments than
39   Babarinsa. The undisputed record shows--and no reasonable
40   jury could find otherwise--that the June 25, 2009 verbal
41   warning to Babarinsa, and her temporary suspension from
42   charge assignments, were precipitated by Babarinsa’s verbal
43   altercation with another employee (while Babarinsa was
44   serving as a charge nurse) in violation of Kaleida Health’s
45   Standards of Personal Conduct Policy. The record further
46   demonstrates that, insofar as Babarinsa had fewer charge
47   assignments in the months following the end of her

                                  2
 1   suspension, they reflected either general variability in
 2   charging assignments or continued complaints against her.
 3   Indeed, Babarinsa received a February 16, 2010 written
 4   warning that stemmed from her failure to provide pain
 5   medication as ordered and her violation of patient
 6   confidentiality and privacy rights. Finally, there is no
 7   record evidence that the statement in Babarinsa’s 2010
 8   annual assessment (on February 11, 2011)--that Babarinsa
 9   “ha[d] improved in communication skills while in charge”--
10   was pretextual. J.A. 118.
11
12        Babarinsa’s reliance on temporal proximity alone to
13   show pretext is misplaced; “[w]e have long held that
14   ‘temporal proximity’ between a protected complaint and an
15   adverse employment action is ‘insufficient to satisfy
16   [plaintiff’s] burden to bring forward some evidence of
17   pretext.’” Chen, 2015 WL 6499909, at *9 (quoting El-Sayed
18   v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010))
19   (alteration in original). Further, her reliance on data
20   about charge hours is undermined by Kaleida Health’s
21   explanations for that data: not only that charge
22   assignments, generally, reflected a variety of important
23   administrative factors, but also that Babarinsa’s charging
24   assignments, specifically, reflected various aforementioned
25   disciplinary proceedings that began in June 2009. Thus,
26   this data, standing alone, is not evidence of pretext. The
27   district court correctly granted summary judgment on
28   Babarinsa’s retaliation claims.
29
30        2. With respect to Babarinsa’s Title VII
31   discrimination claims: because her employer provided non-
32   discriminatory reasons explaining both the distribution of
33   charge assignments prior to June 2009 and the disciplinary
34   action subsequently taken against Babarinsa, the presumption
35   in Babarinsa’s favor established by McDonnell Douglas Corp.
36   v. Green, 411 U.S. 792 (1973), “completely ‘drops out of the
37   picture.’” James v. N.Y. Racing Ass’n, 233 F.3d 149, 154
38   (2d Cir. 2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509
39   U.S. 502, 511 (1993)). Babarinsa has not raised a material
40   issue of fact as to whether these non-discriminatory
41   reasons--the inherent variability in charge assignments,
42   Babarinsa’s poor communication skills, and her violation of
43   Kaleida Health’s Standards of Personal Conduct Policy--were
44   pretextual.
45



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




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