     08-0618-cv
     Porter v. Potter



                               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 W ITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (W ITH 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 for the Second Circuit, held at the Daniel
 2   Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 17th day of
 3   February, two thousand and ten.
 4
 5   PRESENT:
 6               PETER W. HALL,
 7               DEBRA ANN LIVINGSTON,
 8                                 Circuit Judges,
 9               DENNY CHIN,
10                                 District Judge.*
11   _______________________________________________
12
13   BRIAN T. PORTER,
14
15                                      Plaintiff-Appellant,
16                      v.                                                    No. 08-0618-cv
17
18   JOHN E. POTTER, Postmaster General,
19
20                           Defendant-Appellee.**
21   ______________________________________________
22
23



              *
            The Hon. Denny Chin, of the United States District Court for the Southern District of
     New York, sitting by designation.
              **
                   The Clerk of the Court is respectfully directed to amend the official caption as set forth
     above.
 1                                                  WILLIAM D. MICHAEL, Paul, Weiss, Rifkind,
 2                                                  Wharton & Garrison LLP (Daniel J. Kramer, of
 3                                                  counsel), New York, NY, for Plaintiff-Appellant.
 4
 5                                                  JAMES R. CHO (Kevan Cleary, Varuni Nelson, of
 6                                                  counsel), for Benton J. Campbell, United States
 7                                                  Attorney, Eastern District of New York, Brooklyn,
 8                                                  NY, for Defendant-Appellee.
 9
10          Appeal from a judgment of the United States District Court for the Eastern District of New

11   York (Cogan, J.).

12          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

13   DECREED that the judgment of the district court be AFFIRMED IN PART and VACATED AND

14   REMANDED IN PART for further proceedings consistent with this order.

15          Plaintiff-Appellant Brian T. Porter (“Porter”) appeals from a November 30, 2007 judgment

16   of the United States District Court for the Eastern District of New York (Cogan, J.) awarding

17   summary judgment in favor of Defendant John E. Potter, United States Postmaster General, on

18   Porter’s claims of unlawful discrimination and retaliation under Title VII of the Civil Rights Act of

19   1964, 42 U.S.C. § 2000e et seq. We assume the parties’ familiarity with the facts, procedural

20   history, and specification of the issues for review.

21          We review a district court’s grant of summary judgment de novo, construing all the evidence

22   in the light most favorable to the non-moving party and drawing all reasonable inferences in that

23   party’s favor. McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). Summary

24   judgment is appropriate if there is “no genuine issue as to any material fact and . . . the movant is

25   entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We may affirm on any ground

26   supported by the record, including one not relied on by the District Court. Thyroff v. Nationwide

27   Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006).
                                                        2
 1           Title VII retaliation claims are subject to the McDonnell-Douglas burden-shifting analysis.

 2   See Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003). The plaintiff therefore must first

 3   establish a prima facie case of retaliation by producing evidence that he engaged in protected

 4   activity, that his employer was aware of the activity, that his employer took materially adverse action

 5   against him, and that a causal connection existed between the protected activity and the adverse

 6   action. See Kessler v. Westchester County Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).

 7   If the plaintiff meets this initial burden, the defendant then must produce “evidence of a legitimate,

 8   nonretaliatory reason for the challenged employment decision.” Cifra v. Gen. Elec. Co., 252 F.3d

 9   205, 216 (2d Cir. 2001).

10           The defendant need not persuade the court that it was actually motivated by the proffered
11           reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to
12           whether it discriminated [or retaliated] against the plaintiff. To accomplish this, the
13           defendant must clearly set forth, through the introduction of admissible evidence, the reasons
14           for the [challenged actions].

15   Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981) (citation omitted). If the

16   defendant meets this burden of production, the plaintiff, to survive summary judgment, must point

17   to evidence sufficient to permit the factfinder to conclude that the employer’s proffered explanations

18   are pretextual. Treglia v. Town of Manlius, 313 F.3d 713, 721 (2d Cir. 2002).

19           On appeal, Porter challenges the district court’s conclusions that (1) he failed to make out

20   a prima facie case of retaliation with respect to the events surrounding the administrative complaints

21   he filed in 1996, and (2) the government satisfied its burden to articulate a legitimate, non-retaliatory

22   justification for the adverse actions it took against Porter in late 2003 and early 2004. With respect

23   to the 1996 events, we find no error in the district court’s conclusion that Porter failed to make a

24   prima facie case of retaliation. Several documents in the record indicate that Porter was disciplined


                                                        3
 1   by the Postal Service in December 1995, shortly before Porter began filing the administrative

 2   complaints that are the subject of this action. Adverse employment actions that are part of an

 3   “extensive period of progressive discipline” that begins prior to any protected activity on the

 4   plaintiff’s part cannot give rise to an inference of retaliation sufficient to make out a prima facie case.

 5   Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). Moreover, the record

 6   supports Defendant’s argument that each adverse action complained of had a legitimate, non-

 7   retaliatory justification, including Porter’s frequent absence and tardiness, Porter’s behavior at work,

 8   and Porter’s repeated failures to attend required “fitness for duty” examinations. Porter produced

 9   no evidence that suggests that these justifications were merely pretext, and therefore the district

10   court’s grant of summary judgment in favor of Defendant on these claims was correct.

11           As to the events of December 2003 through March 2004, the district court determined that

12   Porter made out a prima facie case of retaliation with respect to four actions taken by the Post Office:

13   denial of holiday and overtime pay, the abolishment of Porter’s position, a letter of warning sent to

14   Porter on January 26, 2004, and Porter’s fourteen-day suspension without pay beginning on February

15   11, 2004. Porter alleges that these actions were taken in retaliation for his having filed an EEO

16   complaint on December 3, 2003, which related to events taking place between June and September

17   2003, and for filing this lawsuit on December 18, 2003. The only actions taken by the Post Office

18   that Porter raises on appeal that could qualify as materially adverse for the purposes of a retaliation

19   claim are the denial of holiday and overtime pay (with respect only to the Christmas and New Year’s

20   holidays), the January 26 letter of warning, and the fourteen-day suspension. See Burlington N. &

21   Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (discussing “material adversity” standard). The

22   district court concluded that the Defendant proffered a legitimate justification for each action, but


                                                         4
 1   its conclusion was not based on any evidence we can find in the record. The documents relating to

 2   these events appear not to have been submitted to the district court by the government, and the only

 3   piece of evidence actually in the record relating to these claims, a “Final Counseling Interview”of

 4   the Postal Service’s EEO Dispute Resolution Specialist dated March 9, 2004, does not explain the

 5   basis for the Postal Service’s actions other than in a conclusory fashion.

 6          Because we are unable to discern on the record before us whether the Defendant offered

 7   sufficient evidence before the District Court to support a legitimate, non-retaliatory justification for

 8   its actions taken against Porter between December 2003 and March 2004, we VACATE the district

 9   court’s judgment on Porter’s claims relating to the denial of holiday pay alleged in Porter’s March

10   24, 2004 EEO complaint, the January 26, 2004 letter of warning, and the February 11, 2004 fourteen-

11   day suspension, and REMAND for further proceedings. On remand, the district court may elect to

12   reopen the summary judgment record to permit the government to submit the documents the

13   government references on appeal, and then, after Porter is given an opportunity to respond, may

14   determine, in light of the record as supplemented, whether the defendant is entitled to judgment as

15   a matter of law. In all other respects the judgment of the district court is hereby AFFIRMED.

16          AFFIRMED IN PART, VACATED AND REMANDED IN PART. Costs — whether to

17   award them and the amount — shall abide the decision of the district court on remand.

18

19
20                                                          FOR THE COURT:
21                                                          Catherine O’Hagan Wolfe, Clerk
22
23
24
25



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