16-3107-cv
Caruso v. Bon Secours Charity Health Sys., Inc.

                                    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 24th day of August, two thousand seventeen.

PRESENT:            JOHN M. WALKER, JR.,
                    JOSÉ A. CABRANES,
                    REENA RAGGI,
                                 Circuit Judges.


PATRIZIA CARUSO,

                               Plaintiff-Appellant,                   16-3107-cv

                               v.

BON SECOURS CHARITY HEALTH SYSTEM, INC.,
GOOD SAMARITAN REGIONAL MEDICAL CENTER,
ROGER A. FRANCO, CHARLES EDWARDS,

                               Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                                   Michael D. Diederich, Jr., Stony Point,
                                                           NY.

FOR DEFENDANTS-APPELLEES BON
SECOURS CHARITY HEALTH SYSTEM, INC.,
GOOD SAMARITAN REGIONAL MEDICAL
CENTER, ROGER A. FRANCO:                                   Sidney R. Steinberg, David E. Renner,
                                                           Post & Schell, P.C., Philadelphia, PA, and
                                                           Pittsburgh, PA.

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FOR DEFENDANT-APPELLEE
CHARLES EDWARDS:                                             Charles Edwards, pro se, Monsey, NY.


     Appeal from a judgment of the United States District Court for the Southern District of
New York (Vincent L. Briccetti, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Plaintiff-appellant Patrizia Caruso sued her former employer, Good Samaritan Hospital
(“GSH”); its parent company, Bon Secours Charity Health System, Inc. (“Bon Secours”); and two of
GSH’s employees (together with GSH and Bon Secours, “Defendants”). She brought several claims,
including claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C.
§ 1981; the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; and the
New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 291 et seq. As relevant here,1
Caruso, a woman in her early fifties who was born in Italy, alleged that she was wrongfully
terminated due to her race, sex, national origin, and age, or as an act of retaliation for engaging in
protected activity. On appeal, she challenges the District Court’s grant of summary judgment to
Defendants and the District Court’s exclusion of evidence from two of her proffered experts. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

        I.      Exclusion of Experts

         Rule 26 of the Federal Rules of Civil Procedure requires a party seeking to use an expert
witness to disclose the expert’s identity. Fed. R. Civ. P. 26(a)(2)(A). If that expert has been “retained
or specially employed to provide expert testimony in the case,” the party’s disclosure “must be
accompanied by a written report” that contains, inter alia, “a complete statement of all opinions the
witness will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B). “If a party fails
to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).




    1
     Caruso also brought several state law tort claims against defendant-appellant Charles Edwards,
over which the District Court declined to exercise supplemental jurisdiction after granting summary
judgment to Defendants on Caruso’s federal claims.

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        We review a district court’s exclusion of evidence under Rule 37(c)(1) for abuse of
discretion. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006). When evaluating whether a district
court acted within its discretion, we consider “‘(1) the party’s explanation for the failure to comply
with the [disclosure requirement]; (2) the importance of the testimony of the precluded witness[es];
(3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new
testimony; and (4) the possibility of a continuance.’” Id. (alterations in original) (quoting Softel, Inc. v.
Dragon Med. & Sci. Commc’ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997)).

        In this case, Caruso did not disclose the two experts’ reports until her opposition to
Defendants’ motion for summary judgment, and Caruso offers no justification for this delay.
Instead, Caruso argues that no report was required, because her experts were unpaid and therefore
not “retained or specially employed to provide expert testimony.” Fed. R. Civ. P. 26(a)(2)(B).

         The District Court did not abuse its discretion by rejecting that argument and excluding
evidence from the two experts. The report requirement in Rule 26(a)(2)(B) does not turn solely on
an expert’s compensation or lack thereof. Rather, the more relevant distinction is between an expert
who happened to have personal involvement with the events giving rise to litigation and an expert
whose only involvement consists of aiding the already-initiated litigation. See Fed. R. Civ. P. 26 adv.
comm. nn. (2010 Amends., Subdiv. (a)(2)(C)) (“A witness who is not required to provide a report
under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under
Evidence Rule 702, 703, or 705.”); Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 182 n.13
(2d Cir. 2004) (“Because Huang was not specially retained to provide expert testimony, and his
duties as an employee of Bank of China do not regularly include giving expert testimony, Rule
26(a)(2)(B) does not apply.”); Downey v. Bob’s Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011)
(“In order to give the phrase ‘retained or specially employed’ any real meaning, a court must
acknowledge the difference between a percipient witness who happens to be an expert and an expert
who without prior knowledge of the facts giving rise to litigation is recruited to provide expert
opinion testimony.”); Prieto v. Malgor, 361 F.3d 1313, 1318 (11th Cir 2004) (requiring report where
expert “had no connection to the specific events underlying this case apart from his preparation for
this trial”).

         Here, the two experts’ only connection to the matter was their being “recruited to provide
expert opinion testimony,” Downey, 633 F.3d at 6, and they were therefore required to produce a
report under Rule 26(a)(2)(B), as the District Court correctly held. In any event, the District Court
found that these experts’ proffered testimony was of minimal importance, and that any prejudice to
Caruso arising from its exclusion was likewise minimal. In sum, the District Court acted well within
its discretion.




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        II.     Discrimination and Retaliation Claims

         “We review de novo the district court’s grant of summary judgment, construing the evidence
in the light most favorable to the non-moving party and drawing all reasonable inferences in her
favor.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). Summary
judgment is appropriate when “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). Courts analyze claims of
discrimination or retaliation under Title VII, 42 U.S.C. § 1981, the ADEA, and the NYSHRL by
employing the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (Title VII, 42 U.S.C. § 1981,
and the NYSHRL); Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (Title
VII and the ADEA); see also Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 151 n.6 (2d Cir. 2014)
(explaining the differences, none of which are relevant to our analysis, among Title VII, 42 U.S.C. §
1981, and the NYSHRL).

        Substantially for the reasons stated by the District Court, we conclude that Defendants are
entitled to summary judgment. The District Court correctly granted summary judgment to
Defendants on Caruso’s discrimination claims. In particular, Caruso failed to offer sufficient
evidence of pretext. The record on summary judgment established that Caruso was terminated after
a physical altercation with another employee, defendant-appellant Charles Edwards. That physical
fight violated GSH’s preexisting workplace violence policy. The director of Human Resources
conducted an investigation and concluded, after interviewing multiple witnesses, that Caruso hit her
co-worker. Both employees were fired for violating GSH’s workplace policies. Caruso offered no
evidence that the Human Resources director or GSH acted with discriminatory animus and her
speculative theories of bias were contradicted by the record. See Harlen Assocs. v. Inc. Vill. of Mineola,
273 F.3d 494, 499 (2d Cir. 2001) (“[M]ere speculation and conjecture is insufficient to preclude the
granting of [summary judgment.]”). Accordingly, the District Court correctly granted summary
judgment to Defendants on Caruso’s discrimination claims.

         A similar analysis applies to Caruso’s retaliation claims. It is true that, roughly five months
prior to her termination, Caruso had filed a sexual harassment complaint against Edwards, the co-
worker with whom she later would have the physical altercation. But GSH investigated and
responded to Caruso’s complaint, and Caruso admits that thereafter Edwards’s sexual advances
ceased. In addition, Caruso offered no evidence that her termination was caused by her months-old
complaint, rather than by the physical altercation that violated GSH’s standards of conduct and
immediately preceded her termination. In short, Caruso “presented no evidence that [her
termination] reflected anything other than [her employer’s] ‘enforcement of its preexisting
disciplinary policies in a reasonable manner.’” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d
11, 26 (2d Cir. 2014) (quoting Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012)) (brackets
omitted).


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                                       CONCLUSION

       We have reviewed all of the arguments raised by Caruso on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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