09-0173-cv
Faul v. Potter
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GO VERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TO GETH ER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS TH E SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9 th day of December, two thousand nine.

PRESENT:         JOHN M. WALKER, JR.,
                 REENA RAGGI,
                                 Circuit Judges,
                 RAYMOND J. DEARIE,*
                                 Chief District Judge.
--------------------------------------------------------------
ROBERTA K. FAUL,
                                 Plaintiff-Appellant,

                 v.                                                    No. 09-0173-cv

JOHN E. POTTER, Postmaster General of the
United States Postal Service, a Federal Agency,
                                 Defendant-Appellee.
--------------------------------------------------------------
APPEARING FOR APPELLANT:                          MARC E. WEINSTEIN (David B. Guertsen,
                                                  Conboy, McKay Law Firm, Watertown, New
                                                  York, on the brief), Trevose, Pennsylvania.



           *
         Chief Judge Raymond J. Dearie of the United States District Court for the Eastern
District of New York, sitting by designation.
APPEARING FOR APPELLEE:                     RAY E. DONAHUE, Special Assistant United
                                            States Attorney (William F. Larkin, Assistant
                                            United States Attorney, Andrew T. Baxter, United
                                            States Attorney, Northern District of New York,
                                            on the brief),Washington, D.C.

       Appeal from the United States District Court for the Northern District of New York

(Thomas J. McAvoy, Judge).

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

DECREED that the judgment entered on December 17, 2008, is VACATED and the case is

REMANDED for further proceedings.

       Roberta K. Faul appeals from an award of summary judgment in favor of her

employer, the United States Postal Service (“USPS”), on her claim that the USPS violated

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by retaliating against her

for filing complaints of sex discrimination. Faul asserts that the district court erred by

finding that she failed to raise a question of fact as to (1) whether a causal connection existed

between her 2002 protected conduct and the USPS’s 2004 decision to eliminate her full-time

position, and (2) whether the USPS’s 2004 decision (later rescinded) to impose a one-week

suspension constituted an “adverse employment action.” Faul also appeals the district court’s

denial of her motion to reconsider the summary judgment award.

       Summary judgment is proper only “if there is no genuine issue as to any material fact

and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

review a summary judgment award de novo, “examining the facts in the light most favorable

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to the non-moving party and resolving all factual ambiguities in that party’s favor.” Pyke v.

Cuomo, 567 F.3d 74, 76 (2d Cir. 2009). We review the denial of a motion to reconsider for

abuse of discretion. See Universal Church v. Geltzer, 463 F.3d 218, 228 (2d Cir. 2006). In

applying these standards, we assume familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our ruling.

       1.     The Elimination of Faul’s Full-Time Position

       Although the district court’s pretext analysis is commendably detailed and sensitive

to Faul’s arguments, we nevertheless disagree with its conclusion that Faul failed to adduce

sufficient evidence to allow a reasonable fact-finder to find the requisite causal nexus

between her protected activity and the USPS’s decision to eliminate her full-time position.

To be sure, the fifteen-month separation between Faul’s May 2002 Equal Employment

Opportunity (“EEO”) complaint and the November 2003 “Function Four” audit that led to

the March 2004 decision to eliminate her position would ordinarily undermine her claim, see

Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001), but Faul here relies

instead, as she may, on other evidence of Sands’s retaliatory animus, see Gordon v. New

York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (“This Court . . . has consistently

held that proof of causation can be shown either: (1) indirectly, by showing that the protected

activity was followed closely by discriminatory treatment . . . or (2) directly, through

evidence of retaliatory animus directed against the plaintiff by the defendant”) (emphasis

added). Causation evidence of a “minimal” or “de minimis” nature suffices at the prima



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facie stage, Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001), and

this Faul has adduced with her assertion that Sands threatened her job (and that of another

female employee) in September 2002 coupled with Sands’s refusal to deny the assertion.

       We further conclude that, when viewing the record in the light “most favorable” to

Faul and resolving “all factual ambiguities” in her favor, Pyke, 567 F.3d at 76, the question

of pretext is genuinely trial-worthy. While the district court plainly appreciated the gravamen

of Faul’s pretext argument (that Sands was looking for a way to fire her and that the results

of an audit, once commissioned, were inevitable), it resolved the ambiguities in the record

that tended to support those arguments in the USPS’s favor rather than in Faul’s. For

example, taking note of the evidence that Sands may have taken the unusual step of

requesting an audit of his own office, the district court nevertheless relied, instead, on the

testimony of USPS Northern Tier Operations Manager Mary Charney that it was she who

made the decision.

       Proceeding alternatively to assume that it was Sands who requested the audit, the

district court concluded that the requisite causal inference was unavailable as a matter of law

absent evidence that Sands’s motives infected the views of the auditors. Here we disagree

with the district court. Viewed most favorably to Faul, the record contains no evidence that

the auditors’ recommendation was the final word on Faul’s employment status. Indeed, at

oral argument, the USPS acknowledged that it was within Sands’s discretion to reject the

auditors’ recommendation that Faul’s position be eliminated. Thus, even accepting that the



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auditors did their job correctly in reaching their apparently inevitable recommendation to

excess Faul’s position, the record here permits the inference that it was Sands’s retaliatory

motives that occasioned not only their arrival, but also the implementation of their

recommendation, and that such animus was, therefore, “at least a substantial or motivating

factor” in the elimination of Faul’s full-time position. Raniola v. Bratton, 243 F.3d 610, 625

(2d Cir. 2001) (internal quotation marks omitted). The persistent discord between Sands and

Faul during the fifteen months between her EEO complaint and the audit is not seriously

disputed; at least one other worker in the Carthage Post Office believed the audit was

probably an effort by Sands to eliminate Faul’s position; and the Carthage audit may have

been the first to result in the excessing of an occupied position.

       For these reasons, we vacate and reverse the grant of summary judgment on this

branch of Faul’s retaliation claim and remand for trial.

       2.     The Seven-Day Suspension

       To prove retaliation, Faul must show that the USPS subjected her to a materially

adverse employment action, i.e., one that “well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). The USPS concedes

that the district court erred as a matter of law in concluding that Faul could not prove that her

suspension constituted such an adverse action in light of her own subsequent filing of a

discrimination complaint.      See Patane v. Clark, 508 F.3d 106, 116 (2d Cir. 2007).



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Nevertheless, the USPS urges us to affirm on the ground that Faul’s rescinded seven-day

suspension cannot constitute an adverse employment action as a matter of law because she

did not actually suffer any wage loss or other injury during that time. Cf. Lovejoy-Wilson

v. NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001) (holding that one-week

suspension without pay is adverse action, even if pay is later reimbursed, because plaintiff

“at least suffered the loss of the use of her wages for a time”); see also Nagle v. Village of

Calumet Park, 554 F.3d 1106, 1120-21 (7th Cir. 2009) (holding that no adverse action

occurred where plaintiff never served suspension); Baloch v. Kempthorne, 550 F.3d 1191,

1199 (D.C. Cir. 2008) (same). Whether or not particular discipline would dissuade a

reasonable worker in a particular job from making a charge of discrimination requires careful

consideration of the totality of the circumstances. See White, 548 U.S. at 68 (“We phrase

the standard in general terms because the significance of any given act of retaliation will

often depend upon the particular circumstances. Context matters.”). In their totality, the

circumstances here, we believe, render the material adversity of the seven-day suspension an

issue not appropriate for summary disposition. We therefore vacate the district court’s

conclusion to the contrary and remand for trial.

       3.     Motion to Reconsider

       In light of our decision to vacate and remand the summary judgment award on both

branches of Faul’s retaliation claim, we need not consider her challenge to the district court’s

denial of her motion for reconsideration.



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      For the foregoing reasons, the district court’s award of summary judgment on both

branches of Faul’s retaliation claim is VACATED and REMANDED for trial.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court


                                 By:_______________________




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