     10-3665-cv
     Harrison v. United States Postal Service


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8th day of December, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PETER W. HALL,
 9                GERARD E. LYNCH,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      WILLIAM K. HARRISON,
14
15                   Plaintiff-Appellant,
16
17                   -v.-                                               10-3665-cv
18
19      UNITED STATES POSTAL SERVICE,
20
21                   Defendant-Appellee,
22
23      JOHN E. POTTER, POSTMASTER GENERAL,
24               Defendant-Appellee.
25
26      - - - - - - - - - - - - - - - - - - - -X
27


                                                 1
 1   FOR APPELLANT:    Christopher Bellistri,
 2                     Cronin & Byczek LLP
 3                     Lake Success, NY
 4
 5   FOR APPELLEES:    James Nicholas Boeving, Jeannette A.
 6                     Vargas, Sarah S. Normand, Assistant United
 7                     States Attorneys, for Preet Bharara,
 8                     United States Attorney,
 9                     Southern District of New York,
10                     New York, NY
11
12
13        Appeal from a judgment of the United States District
14   Court for the Southern District of New York (Daniels, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the district court’s judgment is AFFIRMED.
18
19        William K. Harrison appeals the district court’s grant
20   of summary judgment dismissing Harrison’s claims of unlawful
21   retaliation under Title VII of the Civil Rights Act of 1964.
22   We assume the parties’ familiarity with the underlying
23   facts, the procedural history, and the issues presented for
24   review.
25
26        We review a grant of summary judgment de novo and draw
27   all inferences in favor of the nonmoving party. El Sayed v.
28   Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per
29   curiam). “Summary judgment is appropriate only if the
30   movant shows that there is no genuine dispute as to any
31   material fact and the movant is entitled to judgment as a
32   matter of law.” Id. (internal quotation marks omitted). A
33   genuine issue of fact exists if “the evidence is such that a
34   reasonable jury could return a verdict for the nonmoving
35   party.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)
36   (internal quotation marks omitted).
37
38        Retaliation claims are governed by the three-step
39   burden-shifting framework set forth by the Supreme Court in
40   McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
41   First, the plaintiff bears the burden of proving by the
42   preponderance of the evidence a prima facie case of
43   discrimination. In the retaliation context, this requires
44   the plaintiff to show (1) that he participated in protected

                                  2
 1   activity, (2) that he suffered an adverse employment action
 2   and (3) that a causal connection exists between the
 3   protected activity and the adverse employment action. See
 4   Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d
 5   Cir. 2010). If the plaintiff can make out a prima facie
 6   case of retaliation, the burden then shifts to the defendant
 7   to produce evidence that the adverse employment action was
 8   taken “for a legitimate, nondiscriminatory reason.” St.
 9   Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)
10   (internal quotation marks omitted). If the defendant meets
11   its burden of production, the plaintiff must then prove, by
12   a preponderance of the evidence, that the legitimate
13   nondiscriminatory reason proffered by the defendant is
14   pretextual, and that the true reason for the adverse
15   employment action was the plaintiff’s protected activity.
16   See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
17   248, 256 (1981).
18
19   [1] Harrison argues that he applied for and was denied a
20   number of promotions on account of his protected EEO
21   activity. But he has failed to present any evidence of a
22   causal connection between the alleged denials and his
23   protected activity. The only evidence Harrison has
24   presented from which an inference of causation may be drawn
25   is the temporal proximity between his EEO activity and the
26   denial of his promotions. However, even “[t]he cases that
27   accept mere temporal proximity between an employer’s
28   knowledge of protected activity and an adverse employment
29   action as sufficient evidence of causality to establish a
30   prima facie case uniformly hold that the temporal proximity
31   must be very close.” Clark Cnty. Sch. Dist. v. Breeden, 532
32   U.S. 268, 273 (2001) (per curiam) (internal quotation marks
33   omitted). In Harrison’s case, all of the job vacancies in
34   question closed at least several months (and in most cases
35   considerably longer) after Harrison engaged in protected
36   activity. This evidence, therefore, is insufficient to
37   support the necessary causal connection.
38
39   [2] Harrison next claims that he suffered retaliation
40   when Freddie Burroughs, his wife’s harasser, was transferred
41   into Harrison’s unit. However, as Harrison has previously
42   conceded, Burroughs was transferred before Harrison first
43   engaged in protected activity by testifying at his wife’s
44   EEOC hearing in November, 1995.

                                  3
 1
 2   [3] Harrison claims that he was subjected to retaliation
 3   when he was denied differential pay after serving for a two-
 4   week period as Acting Manager of Distribution Operations
 5   (“AMDO”) while the Manager of Distribution Operations was on
 6   vacation. Harrison’s temporary stint as an AMDO occurred
 7   before Harrison first contacted an EEO counselor or filed an
 8   EEO complaint of his own. Thus, a retaliation claim would
 9   have to be based on his testimony at his wife’s EEOC hearing
10   in November, 1995. But the temporal gap of almost two years
11   between the date of this protected activity and the alleged
12   retaliation is too great to give rise to an inference of
13   causation. See Burkybile v. Bd. of Educ., 411 F.3d 306, 314
14   (2d Cir. 2005) (finding no causation where more than a year
15   passed between protected activity and alleged retaliation).
16   As Harrison has failed to present any other evidence of
17   causation, no reasonable jury could find that Harrison was
18   denied differential pay as a result of his protected
19   activity.
20
21   [4] Harrison argues that he again suffered retaliation
22   when he was transferred from the Automation Unit to the
23   Transportation Unit in November of 1997. But the
24   antiretaliation provision of Title VII covers only those
25   employer actions that a reasonable employee would consider
26   materially adverse. Burlington N. & Santa Fe R.R. Co. v.
27   White, 548 U.S. 53, 57 (2006). “Whether a particular
28   reassignment is materially adverse depends upon the
29   circumstances of the particular case, and should be judged
30   from the perspective of a reasonable person in the
31   plaintiff’s position . . . .” Id. at 71 (internal quotation
32   marks omitted). Harrison has failed to raise a genuine
33   issue of fact on this point. Several Postal Service
34   managers testified at deposition that familiarity with
35   transportation is a useful skill for someone seeking
36   advancement and that a number of employees were promoted
37   after having worked in the Transportation Unit. Harrison
38   has presented no evidence, beyond conclusory statements, to
39   the contrary.
40
41   [5] Finally, Harrison argues that he was retaliated against
42   when he was given only a short four-month detail in the
43   Quality Unit while some other employees received longer
44   details. The allegedly short duration of Harrison’s detail

                                  4
 1   does not constitute a materially adverse employment action.
 2   A detail is a discretionary and temporary assignment, and
 3   Harrison concedes that very few supervisors were permitted
 4   to go on detail at all. A reasonable person would not find
 5   that being given a discretionary and favorable assignment,
 6   even if for a short period of time, was materially adverse.
 7   See, e.g., Forkkio v. Tanoue, 131 F. Supp. 2d 36, 42 (D.D.C.
 8   2001) (holding that the expiration of a plaintiff’s
 9   temporary promotion was not an adverse employment action
10   because “plaintiff did not lose a term or condition of
11   employment to which he had anything but a temporary
12   entitlement”). Therefore, the Government was entitled to
13   summary judgment on this claim as well.
14
15        We have considered plaintiff’s remaining arguments and
16   find them to be without merit. For the foregoing reasons,
17   the judgment of the district court is hereby AFFIRMED.
18
19
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23




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