    17-860
    Mitchell v. State of New York Upstate Med. Univ.


                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 22nd day of May, two thousand eighteen.

    PRESENT:
                JON O. NEWMAN,
                PETER W. HALL,
                SUSAN L. CARNEY,
                      Circuit Judges.
    __________________________________________

    Robbie Mitchell,

                                Plaintiff-Appellant,
                      v.                                                            17-860

    State University of New York Upstate Medical
    University,

                      Defendant-Appellee.
    __________________________________________

    FOR PLAINTIFF-APPELLANT:                           Robbie Mitchell, pro se, Syracuse, NY.

    FOR DEFENDANT-APPELLEE:                            Barbara D. Underwood, Solicitor General, Andrea
                                                       Oser, Deputy Solicitor General, Zainab A.
                                                       Chaudhry, Assistant Solicitor General, for Barbara
                                                       Underwood, Acting Attorney General for the State
                                                       of New York, Albany, NY.
         Appeal from a judgment of the United States District Court for the Northern District of

New York (Dancks, M.J.).1


         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

         Appellant Robbie Mitchell, proceeding pro se, appeals from a judgment in favor of his

former employer, SUNY Upstate Medical University (“Upstate”), in his Title VII retaliation

lawsuit. Mitchell, represented by counsel in district court, alleged that between his return from a

2012 suspension and the ultimate termination of his employment in 2015, Upstate engaged in

various forms of retaliation for Mitchell’s having previously complained about race

discrimination. A magistrate judge granted summary judgment to Upstate, concluding that most

of the complained-of actions were not materially adverse, and, in any event, Mitchell failed to

demonstrate that retaliation was the but-for cause of the challenged actions. This appeal follows.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

         We review a district court’s grant of summary judgment de novo, “resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police

Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only

when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”




1 The parties consented to the magistrate judge’s jurisdiction to conduct the proceedings and enter judgment in this
case. See 28 U.S.C. § 636(c).

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Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). A party

cannot overcome summary judgment, however, by relying on “‘mere speculation or conjecture as

to the true nature of the facts’” because “‘conclusory allegations or denials . . . cannot by

themselves create a genuine issue of material fact where none would otherwise exist.’” Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alteration in original) (quoting Fletcher v. Atex, Inc., 68

F.3d 1451, 1456 (2d Cir. 1995)).

       To sustain a prima facie case of retaliation under Title VII, a plaintiff must demonstrate

“(1) [he] was engaged in protected activity; (2) the employer was aware of that activity; (3) the

employee suffered a materially adverse action; and (4) there was a causal connection between the

protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.

2012). If the plaintiff makes out a prima facie case of retaliation, the burden shifts to the

defendant employer to articulate “a legitimate, non-discriminatory reason for its actions.”

Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (per curiam). “If the employer

does so, the burden then shifts back to the plaintiff to show that the employer’s explanation is

pretext for . . . retaliation.” Id. To meet that burden, the plaintiff must show “that the adverse

action would not have occurred in the absence of the retaliatory motive.” Kwan v. Andalex Grp.

LLC, 737 F.3d 834, 846 (2d Cir. 2013).

       Upon review, we conclude that the magistrate judge properly granted summary judgment

to Upstate. Even assuming Mitchell could make out a prima facie case of retaliation, the record

fails to show that the nonretaliatory reasons proffered by Upstate for the various adverse actions

were pretextual, let alone that retaliation was a but-for cause of the actions. We therefore affirm



                                                 3
for substantially the reasons given by the magistrate judge in her thorough and well-reasoned

March 17, 2017 decision.

       We have considered Mitchell’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

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




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