     18‐2083‐cv
     Rodriguez‐Coss v. Barr

                                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.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 26th day of June, two thousand nineteen.
 4
 5          PRESENT: DENNIS JACOBS,
 6                           RAYMOND J. LOHIER, JR.,
 7                           MICHAEL H. PARK,
 8                                   Circuit Judges.
 9          ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10          JACABED RODRIGUEZ‐COSS,
11
12                            Plaintiff‐Appellant,
13
14                    v.                                                         No. 18‐2083‐cv
15
16          WILLIAM P. BARR, United States Attorney
17          General,
18
19                           Defendant‐Appellee.
20          ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
21          FOR APPELLANT:                                            KEVIN G. LITTLE, Law Office of
22                                                                    Kevin G. Little, Fresno, CA.
23
 1         FOR APPELLEE:                                 KRUTI D. DHARIA, Assistant
 2                                                       United States Attorney, for
 3                                                       Craig Carpenito, United States
 4                                                       Attorney, District of New
 5                                                       Jersey, Newark, NJ.
 6
 7         Appeal from a judgment of the United States District Court for the District

 8   of Connecticut (Vanessa L. Bryant, Judge).

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

10   AND DECREED that the judgment of the District Court is AFFIRMED.

11         Jacabed Rodriguez‐Coss appeals from a judgment of the District Court

12   (Bryant, J.), dismissing her claims against the United States Attorney General for

13   discrimination and retaliation due to gender and parental status under Title VII

14   of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and discrimination

15   under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. On appeal,

16   Rodriguez‐Coss challenges only the District Court’s dismissal of her claims for

17   gender discrimination and retaliation under Title VII. We assume the parties’

18   familiarity with the facts and record of the prior proceedings, to which we refer

19   only as necessary to explain our decision to affirm.




                                              2
 1         1.     Discrimination

 2         As part of her prima facie case, Rodriguez‐Coss had to show that she

 3   suffered an adverse employment action, defined as “a materially adverse change

 4   in the terms and conditions of employment.” Vega v. Hempstead Union Free

 5   Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (quotation marks omitted). Rodriguez‐

 6   Coss claims in part that she was discriminated against when she was assigned to

 7   United States v. Stone, a capital case in the Eastern District of California, and her

 8   supervisors proved unwilling to transfer the case to another attorney or to

 9   otherwise accommodate her needs. Although “the assignment of a

10   disproportionately heavy workload can constitute an adverse employment

11   action,” id. (quotation marks omitted), there was no evidence on summary

12   judgment that Rodriguez‐Coss’s continued assignment to Stone resulted in a

13   disproportionately heavy workload. First, an uncontested summary chart for

14   fiscal years 2008 to 2014 showed that Rodriguez‐Coss traveled less than many of

15   the other male and female trial attorneys in the Capital Case Section.1 Second,



     1 Rodriguez‐Coss argues that the District Court should have excluded this chart
     because the underlying records had not been made available for review during
     discovery. But Rodriguez‐Coss did not present any evidence that she asked for the

                                               3
 1   Rodriguez‐Coss agreed that she was able to take on another case before she was

 2   assigned to Stone. Accordingly, we agree with the District Court that

 3   Rodriguez‐Coss has failed to demonstrate that her allegedly heavy workload

 4   constituted an adverse employment action.

 5         Next, even assuming that Rodriguez‐Coss made a prima facie case for

 6   discrimination with respect to the Flexiplace Agreement and letter of reprimand,

 7   her discrimination claim fails under the third step of McDonnell Douglas, where

 8   “the plaintiff’s admissible evidence must show circumstances that would be

 9   sufficient to permit a rational finder of fact to infer that the defendant’s

10   employment decision was more likely than not based in whole or in part on

11   discrimination.” Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016)

12   (quotation marks omitted). In light of Rodriguez‐Coss’s resistance to trying the

13   Stone case and the repeated criticisms she received from federal judges for failing

14   to meet court deadlines, we agree with the District Court that Rodriguez‐Coss

15   has failed to meet her burden.




     underlying data, and the District Court did not abuse its discretion in considering the
     chart.

                                                 4
 1         2.     Retaliation

 2         Rodriguez‐Coss also argues that the District Court mistakenly concluded

 3   that the summer of 2012 was the only time she complained of being denied

 4   accommodations based on her gender. She states that her complaints extended

 5   through the fall of 2013 and are therefore temporally proximate to the decisions

 6   relating to her Flexiplace Agreement and her reprimand. But temporal

 7   proximity alone is ordinarily “insufficient to satisfy [plaintiff’s] burden” at the

 8   third McDonnell Douglas stage. El Sayed v. Hilton Hotels Corp., 627 F.3d 931,

 9   933 (2d Cir. 2010). Rodriguez‐Coss failed to adduce sufficient evidence that

10   “the desire to retaliate was the but‐for cause of the challenged employment

11   action[s].” Ya‐Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015)

12   (quotation marks omitted).

13         We have considered Rodriguez‐Coss’s remaining arguments and conclude

14   that they are without merit. For the foregoing reasons, the judgment of the

15   District Court is AFFIRMED.

16                                          FOR THE COURT:
17                                          Catherine O=Hagan Wolfe, Clerk of Court



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