14-3723(L)
Vogel v. CA, Inc.

                           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 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
25th day of October, two thousand sixteen.

Present:
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                    Circuit Judges,
            JED S. RAKOFF,
                    District Judge.*
_____________________________________

HOWARD VOGEL,

                         Plaintiff-Appellant,

                    v.                                                  Nos. 14-3723, 15-3797

CA, INC.,

                  Defendant-Appellee.
_____________________________________

For Plaintiff-Appellant:                        MEGAN L. PILTZ, Sabatini & Associates, LLC,
                                                Newington, Connecticut

For Defendant-Appellee:                         HOLLY L. CINI, Jackson Lewis P.C., Hartford,
                                                Connecticut

*
  Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting
by designation.


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       UPON      DUE      CONSIDERATION              WHEREOF       it   is   hereby    ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part

and VACATED and REMANDED in part.

       In this consolidated appeal, Plaintiff-Appellant Howard Vogel appeals from two

judgments of the United States District Court for the District of Connecticut (Bryant, J.), dated

September 8, 2014 and November 23, 2015, granting summary judgment in favor of

Defendant-Appellee CA, Inc. (“CA”) on all of Vogel’s claims. Vogel asserted claims for

employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-2, 2000e-3, and analogous state law claims under the Connecticut Fair

Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60, et seq.              We assume the

parties’ familiarity with the underlying facts, the procedural history, and the issues presented for

review, elaborating only as necessary.

       In 2005, Vogel began working for CA, a company that sells computer software and

software support services.    In late 2009, he joined a new team within CA, the India Service

Provider team. On this team, each of four U.S.-based Account Directors (of which Vogel was

one) was matched with an India-based CA counterpart, and each U.S.-based team was matched

with an India-based team to work with an India service provider.        The team’s founder, Dennis

Kozak, recruited Vogel to the team.      In January 2010, Steve Perlman took over management of

the team.   In February, Vogel reported to Human Resources that he believed his role on the

team was being defined in part by his race.    He testified in his deposition that for the rest of his

time on the team, he experienced harsh treatment from his supervisor Perlman.            Throughout

2010, Vogel did not meet his sales quotas. In fact, he failed to make a single sale that qualified




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toward his sales quotas.      In December 2010, CA fired Vogel, citing his failure to meet

performance metrics as the reason for his termination.

         Vogel sued in federal court, alleging he had been discriminated against on the basis of his

race and national origin, and retaliated against for complaining about that discrimination.     The

district court granted summary judgment to CA on Vogel’s Title VII claims, and declined to

exercise supplemental jurisdiction over his state law claims. Vogel then filed his CFEPA

claims in state court, and CA removed that lawsuit to federal court. The district court then

granted summary judgment in favor of CA on Vogel’s state law claims for substantially the same

reasons it had done so on Vogel’s federal claims.     Vogel timely appealed.

I.       Discussion

         We review the district court’s grant of summary judgment de novo, considering the

evidence in the light most favorable to the non-moving party and drawing all inferences in his

favor.   Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam).         All of

Vogel’s claims are governed by the three-step burden-shifting framework outlined in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).          Kirkland, 760 F.3d at 225; Summa v. Hofstra

Univ., 708 F.3d 115, 125 (2d Cir. 2013); Craine v. Trinity Coll., 791 A.2d 518, 530–31, 531 n.6

(Conn. 2002).      “Once an employee makes a prima facie case of either discrimination or

retaliation, the burden shifts to the employer to give a legitimate, non-discriminatory reason for

its actions. If the employer does so, the burden then shifts back to the plaintiff to show that the

employer’s explanation is a pretext for . . . discrimination or retaliation.” Kirkland, 760 F.3d at

225 (citations omitted).

         As to Vogel’s claims of race and national origin discrimination, the district court held

that Vogel had not established a prima facie case because he had not adduced evidence from


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which a reasonable juror could conclude that any adverse employment action taken against

Vogel occurred under circumstances giving rise to an inference of discrimination.1 We agree.

Vogel contends that a comment made by Kozak that “Indians would rather deal with Indians”

suggests discriminatory intent.        However, this comment was made shortly before Kozak

recruited Vogel to work on the India Service Provider team, undercutting any inference of

discriminatory intent, and was made by Kozak, not by Perlman, who was the individual

responsible for the adverse employment actions of which Vogel complains. See Tomassi v.

Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (“[T]he more remote and oblique the

remarks are in relation to the employer’s adverse action, the less they prove that the action was

motivated by discrimination.”), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009). Vogel next relies on a comment allegedly made by Perlman that “Vogel

did not work well and play well with the guys in India,” but this remark also does not support an

inference of discrimination, given that it is undisputed that Vogel’s working relationship with the

members of his team based in India was tense. Finally, Vogel points to the transfer of some of

his duties and projects to the India-based team as evidence of discriminatory intent, but he

adduced no evidence indicating this shift was motivated by race or national origin—particularly

where, as here, there is no evidence that Vogel’s white, non-Indian colleagues also had their

duties similarly shifted. Cf. Leibowitz v. Cornell Univ., 584 F.3d 487, 503 (2d Cir. 2009)

(holding inference of discriminatory intent could be drawn where plaintiff and several other

women over fifty were laid off, and plaintiff’s responsibilities were transferred to male employees,

1
  To establish a prima facie case of race or national origin discrimination, a plaintiff must put forth
evidence that “(1) he belongs to a protected group; (2) he was qualified for his position; (3) his employer
took an adverse action against him; and (4) the adverse action occurred in circumstances giving rise to an
inference of . . . discrimination.” Kirkland, 760 F.3d at 225.




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and she was not considered for open positions), superseded by statute on other grounds. The

district court correctly held that Vogel had not sustained even the de minimis burden of

establishing a prima facie case of race or national origin discrimination under either Title VII or

the CFEPA.

       Vogel’s retaliation claims present a different issue. To establish a prima facie case of

retaliation, a plaintiff must put forth evidence that (1) he engaged in protected activity (such as

complaining about discrimination); (2) his employer knew about it; (3) his employer took adverse

action against him; and (4) there is a causal connection between his protected activity and the

adverse employment action. Summa, 708 F.3d at 125. The central issue on appeal is whether

Vogel established an adverse employment action. For the purposes of a retaliation claim, an

adverse employment action must be “materially adverse,” that is, it must be “harmful to the point

that [it] could well dissuade a reasonable worker from making or supporting a charge of

discrimination.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). “[N]ormally petty slights, minor annoyances,

and simple lack of good manners will not create such deterrence.” White, 548 U.S. at 68. The

context in which the claimed adverse employment action occurs matters, and “the alleged acts of

retaliation need to be considered both separately and in the aggregate, as even minor acts of

retaliation can be sufficiently ‘substantial in gross’ as to be actionable.” Hicks, 593 F.3d at 165.

       Discussing Vogel’s Title VII retaliation claim, the district court observed that “[a]n

adverse employment action is a ‘materially adverse change in the terms and conditions of

employment.’” J.A. 357 (quoting Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008))

(emphasis omitted).    For a retaliation claim, however, “the retaliatory act [need not] bear on the

terms or conditions of employment,” Hicks, 593 F.3d at 169, so long as “the employer’s actions


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were harmful to the point that they could well dissuade a reasonable worker from making or

supporting a charge of discrimination,” id. at 169 (quoting White, 548 U.S. at 57) (internal

quotation marks omitted) (alteration omitted). The district court thus erred by examining only

whether Vogel adduced sufficient evidence for a reasonable jury to conclude that he experienced a

material shift in his employment duties or termination as a result of his protected activity.

       Based on Vogel’s testimony, a reasonable jury could conclude that after Vogel reported to

Human Resources that he suspected he was being discriminated against on the basis of race,

Perlman singled him out for hostile treatment. Vogel testified that from the time of his complaint

until his termination, Perlman was persistently hostile toward him on team conference calls, made

jokes about him in front of his colleagues, and removed him from meetings. He also testified that

during a discussion about his performance review in April 2010, Perlman yelled at him, called him

names, told him that his actual performance was irrelevant, and said he did not want Vogel on his

team. (Perlman allegedly again said he did not want Vogel on his team during a call with Human

Resources a few months later.) For the purpose of his retaliation claims, Vogel’s testimony

concerning Perlman’s treatment of him (particularly in light of both Vogel’s allegation that

Perlman repeatedly stated Vogel was not wanted on Perlman’s team and Vogel’s eventual

termination) was sufficient to support a prima facie case that Vogel was subjected to adverse

employment action. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 26–27

(2d Cir. 2012).

       The district court held that Vogel’s retaliation claims also failed because he could not

establish that his complaint caused his termination, and even if he had, he had not overcome

CA’s legitimate, nonretaliatory motive for terminating Vogel (namely, his poor performance).

As to causation, Vogel testified that Perlman’s treatment began shortly after Vogel’s complaint


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to Human Resources, and close temporal proximity is enough to establish causation at the prima

facie stage. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013).           Given the

district court’s legal error as to adverse employment action in the retaliation context, we decline

to address the balance of the McDonnell Douglas analysis in the first instance, and conclude that

Vogel established a prima facie case without reaching the question whether he adduced sufficient

evidence to support a reasonable jury verdict as to his retaliation claims.

II.    Conclusion

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

We AFFIRM the judgment of the district court as to Vogel’s discrimination claims, and we

VACATE and REMAND as to Vogel’s retaliation claims, brought pursuant to both Title VII

and the CFEPA, for further proceedings consistent with this summary order.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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