         12-159-cv
         Fosco v. CUNY

                                 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 Street, in the City of New York,
 4       on the 22nd day of February, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                         Circuit Judges.
 9                DAVID G. LARIMER,
10                         District Judge.*
11
12
13
14       MARIA FOSCO,
15
16                                     Plaintiff-Appellant,
17
18                       -v.-                                                              12-159-cv
19
20       CITY UNIVERSITY OF NEW YORK, QUEENS COLLEGE, THE JOHN D.
21       CALANDRA ITALIAN AMERICAN INSTITUTE,
22
23                                     Defendants-Appellees,
24
25       MATTHEW GOLDSTEIN, JAMES MUYSKENS, ANTHONY TAMBURRI,
26
27                                     Defendants.
28
29

                *
                The Honorable David G. Larimer, of the United States
         District Court for the Western District of New York, sitting by
         designation.
 1   FOR APPELLANT:    STEVEN M. WARSHAWSKY, The Warshawsky Law
 2                     Firm, New York, NY.
 3
 4   FOR APPELLEES:    ANDREW AMEND, Assistant Solicitor General
 5                     (Barbara D. Underwood, Solicitor General,
 6                     Michael S. Belohlavek, Senior Counsel,
 7                     Matthew W. Grieco, Assistant Solicitor
 8                     General, on the brief), for Eric T.
 9                     Schneiderman, Attorney General of the
10                     State of New York, New York, NY.
11
12        Appeal from the United States District Court for the
13   Southern District of New York (Pauley, J.).
14
15       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

16   AND DECREED that the judgment of the United States District

17   Court for the Southern District of New York be AFFIRMED.

18       Plaintiff-Appellant Maria Fosco appeals from the

19   district court’s award of summary judgment in favor of

20   defendants, embodied in the court’s Memorandum and Order

21   dated January 5, 2012, on Fosco’s claim that her employer

22   retaliated against her in violation of Title VII of the

23   Civil Rights Act of 1964.    We assume the parties’

24   familiarity with the underlying facts, procedural history,

25   and specification of issues for review.

26       “We review a district court’s grant of summary judgment

27   de novo, construing the evidence in the light most favorable

28   to the nonmoving party and drawing all reasonable inferences

29   in that party’s favor.”     Kuebel v. Black & Decker Inc., 643


                                     2
1    F.3d 352, 358 (2d Cir. 2011).       “Summary judgment is

2    appropriate only ‘[w]here the record taken as a whole could

3    not lead a rational trier of fact to find for the non-moving

4    party.’” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691

5    F.3d 134, 141 (2d Cir. 2012) (quoting Matsushita Electric

6    Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

7    “Retaliation claims under Title VII are evaluated under a

8    three-step burden-shifting analysis.”       Hicks v. Baines, 593

9    F.3d 159, 164 (2d Cir. 2010) (citing McDonnell Douglas Corp.

10   v. Green, 411 U.S. 792, 802-05 (1973)) (internal quotations

11   omitted).     At the first step, “[t]o establish a prima facie

12   case of retaliation, an employee must show that (1) she was

13   engaged in protected activity; (2) the employer was aware of

14   that activity; (3) the employee suffered a materially

15   adverse action; and (4) there was a causal connection

16   between the protected activity and that adverse action.”

17   Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012).

18       The district court’s grant of summary judgment depended

19   upon its finding that Fosco had failed to present evidence

20   of a causal connection between any protected activity in

21   which she engaged and her reassignment to the admissions

22   office.     The court relied on the lack of temporal proximity


                                     3
1    between Fosco’s involvement in litigation and her transfer,

2    but as Fosco notes, her argument depends not on timing but

3    on direct evidence of statements made by her employers, in

4    particular Queens College President James Muyskens and Dean

5    Anthony Tamburri.   Nonetheless, especially in light of the

6    significant passage of time since the allegedly protected

7    activity, we find that the comments, considered in context,

8    do not constitute evidence from which a reasonable jury

9    could conclude that defendants chose to reassign Fosco as a

10   result of that activity.    Because Fosco cannot make the

11   required showing on this element of the four-part test, her

12   retaliation claim fails.

13       We have considered Fosco’s remaining arguments and find

14   them to be without merit.    For the foregoing reasons, the

15   district court’s grant of summary judgment in defendants’

16   favor is hereby AFFIRMED.

17
18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk
20
21
22
23
24




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