19‐935
Philpott v. SUNY



                    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 17th day of March, two thousand twenty.

PRESENT: PETER W. HALL,
           RAYMOND J. LOHIER, JR.,
           MICHAEL H. PARK,
                      Circuit Judges.
_____________________________________

Jeffrey Philpott,

                    Plaintiff‐Appellant,

                    v.
                                                          19‐935
State University of New York,

                    Defendant‐Appellee,
State of New York, University of the State of New
York,

                 Defendants.
_____________________________________

For Appellant:                            DANIEL E. DUGAN (Stewart Lee Karlin, on the
                                          brief), Stewart Lee Karlin Law Group, P.C.,
                                          New York, New York.

For Appellee:                             JOSHUA M. PARKER (Barbara D. Underwood,
                                          Steven C. Wu, on the brief), for Letitia James,
                                          Attorney General, State of New York, New
                                          York, New York.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (Hellerstein, J.).

      UPON       DUE    CONSIDERATION,              IT   IS    HEREBY      ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Jeffrey Philpott appeals from a judgment entered March 13, 2019, granting

summary judgment in favor of the State University of New York (“SUNY”). We

assume the parties’ familiarity with the underlying facts, the record of prior

proceedings, and the arguments on appeal, which we reference only as necessary

to explain our decision to affirm.




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                                         I.

      Appellant Jeffrey Philpott, a gay man, sued SUNY following his termination

from his position as Vice President of Student Affairs at SUNY College of

Optometry.    In his Title VII action, Philpott alleged that he was unlawfully

terminated due to discrimination on the basis of his sexual orientation, unlawfully

retaliated against for complaining of harassment and discrimination, and

subjected to a hostile work environment. The district court granted summary

judgment in favor of SUNY.

      “We review a grant of summary judgment de novo and may affirm on any

basis that finds support in the record.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir.

2015) (citations omitted). In assessing whether summary judgment should be

granted, we “resolve all ambiguities and draw all reasonable inferences against

the moving party.” Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)).

                                         II.

      Sexual orientation discrimination is actionable under Title VII. See Zarda v.

Altitude Express, Inc., 883 F.3d 100, 112–13, 131–32 (2d Cir. 2018) (en banc), cert.

granted, 139 S. Ct. 1599 (2019). A court may grant summary judgment where “there



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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). “[C]onclusory statements,” Flores v.

United States, 885 F.3d 119, 122 (2d Cir. 2018), and “affidavit[s] that contradict[] the

party’s previous sworn testimony,” In re Fosamax Prods. Liab. Litig., 707 F.3d 189,

193 (2d Cir. 2013), cannot defeat summary judgment.

      At the summary judgment stage, Title VII discrimination claims are

governed by the burden‐shifting analysis established in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802–04 (1973). See Brown v. City of Syracuse, 673 F.3d 141, 150

(2d Cir. 2012). Philpott bears the burden of establishing a prima facie case of

discrimination; in order to do so, he must show “(1) he belonged to a protected

class; (2) he was qualified for the position he held; (3) he suffered an adverse

employment action; and (4) that the adverse employment action occurred under

circumstances giving rise to an inference of discriminatory intent.” Id. (citing

Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008)). Once the plaintiff makes out

a prima facie case, the burden shifts “to the employer to articulate some legitimate,

nondiscriminatory reason” for the adverse action. McDonnell Douglas Corp., 411

U.S. at 802. If the employer meets this burden, the burden shifts back to the




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plaintiff “to show that [the defendant’s] stated reason for [the adverse

employment action] was in fact pretext.” Id. at 804.

      Philpott contends that he was terminated under circumstances from which

sexual orientation discrimination can be inferred because his supervisor, Dr.

Heath, made multiple discriminatory comments in the months and years before

Philpott’s termination. Assuming without deciding that these comments satisfy

Philpott’s “minimal” burden to raise an inference of discriminatory motive at the

prima facie stage, see Lenzi v. Systemax, Inc., 944 F.3d 97, 107 (2d Cir. 2019), we

nonetheless affirm the grant of summary judgment to SUNY on the discriminatory

termination claim because Philpott failed to adduce sufficient evidence to raise a

material dispute of fact that SUNY’s stated reasons for termination were

pretextual.   Here, SUNY adduced overwhelming evidence that Philpott was

terminated after declining work performance, extensive absences from the office

during business hours, and insubordination in connection with his emergency

leave request. The presumption of discrimination arising from the prima facie case

thereafter “drops out of the analysis,” id. at 108 (quotation marks omitted), and

Philpott failed to offer any other evidence rebutting the proffered reasons or




                                        5
suggesting that SUNY was, in fact, motivated by discrimination. We therefore

agree that a reasonable jury could not find SUNY’s stated reasons to be pretextual.

      We similarly conclude that Philpott failed to show that SUNY’s stated

reasons for termination were a pretext for retaliation.            Unlike Title VII

discrimination claims, to which a “motivating‐factor standard” of causation

applies, retaliation claims require proof that retaliation was the “but‐for” cause of

the adverse action. Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 359–60 (2013).

Temporal proximity between Philpott’s complaints of discrimination and his

termination is insufficient, standing alone, to carry his burden to show pretext. See

El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010). We therefore affirm

the district court’s grant of summary judgment to SUNY on Philpott’s

discrimination and retaliation claims.

      Philpott also argues that the district court erred in granting summary

judgment to SUNY on his hostile work environment claims. “To establish a prima

facie case of hostile work environment, the plaintiff must show that the

discriminatory harassment was sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment . . . [and] that the hostile conduct occurred because of a protected



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characteristic.” Tolbert, 790 F.3d at 439 (internal quotation marks and citations

omitted). “As a general rule, incidents must be more than episodic; they must be

sufficiently continuous and concerted in order to be deemed pervasive. Isolated

acts, unless very serious, do not meet the threshold of severity or pervasiveness.”

Id. (internal quotation marks and citations omitted).

      Philpott has not established a prima facie case of hostile work environment.

As Appellee claims, even viewing the facts in the light most favorable to Philpott,

the available evidence shows that any discriminatory comments allegedly made

by his supervisor and a coworker—including comments about which Philpott

could identify no specifics as to timing or context or which he heard indirectly

from third parties—were made inconsistently and sporadically. In other words,

the record evidence does not support a finding that these isolated comments,

assuming they were made, were “sufficiently continuous and concerted” such that

they meet the threshold of pervasiveness. Id. at 439. We therefore affirm the

district court on this count as well.




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                                     ***

      We have considered Philpott’s remaining arguments and find them to be

without merit. We hereby AFFIRM the judgment of the district court.




                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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