17-1952 (L)
Canady v. Univ. of Rochester, et al.


                         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 30th day of May, two thousand eighteen.

Present:
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges.
_____________________________________

MARK CANADY,

                              Plaintiff-Appellant,

                    v.                                                                  17-1952 (L),
                                                                                        17-1979 (Con)

UNIVERSITY OF ROCHESTER, 1199SEIU UNITED HEALTHCARE WORKERS EAST,

                              Defendants-Appellees.*

_____________________________________

For Plaintiff-Appellant, Mark Canady:                       Mark Canady, pro se, Rochester, NY.


* The Clerk is directed to conform the official caption to the caption on this order.

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For Defendant-Appellee,
University of Rochester:                          Mary E. Shepard, The Wolford Law Firm LLP,
                                                  Rochester, NY.

For Defendant-Appellee, 1199SEIU                  Jonathan George Johnsen, Creighton, Johnsen &
United Healthcare Workers East:                   Giroux, Buffalo, NY.


       Appeal from a May 23, 2017 judgment of the United States District Court for the Western

District of New York (Larimer, J.).


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

DECREED that the judgment of the district court is AFFIRMED, and the motion to amend the

caption is GRANTED.

       Appellant Mark Canady, proceeding pro se, appeals from a May 23, 2017 judgment of the

United States District Court for the Western District of New York (Larimer, J.). The district court

granted summary judgment in favor of the University of Rochester (“University”) and 1199 SEIU

United Healthcare Workers East in three employment discrimination actions, which have been

consolidated. Canady alleged racial discrimination and retaliation in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, after he was suspended for five days, fired,

denied unemployment benefits, and allegedly received a racist voicemail. Canady also moved for

the district court judge to recuse himself because the judge had presided over his previous criminal

case. This appeal followed. Canady challenges the district court’s grant of summary judgment on

his retaliation claim, and the University moves to amend the caption, as set out above. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.



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       We review a district court’s denial of a recusal motion for abuse of discretion. United States

v. Morrison, 153 F.3d 34, 48 (2d Cir. 1998). We review de novo a district court’s grant of summary

judgment. See, e.g., Jackson v. Fed. Exp., 766 F.3d 189, 193 (2d Cir. 2014). Summary judgment

should be granted only if no reasonable jury could return a verdict for the non-moving party, and

there is no genuine dispute as to any material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247, 248 (1986).

       Here, the district court’s decision not to recuse was not an abuse of discretion. Recusal is

appropriate when “‘a reasonable person, knowing all the facts,’ would question the judge’s

impartiality.” United States v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (quoting United States v.

Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)); see 28 U.S.C. § 455(a). While recusal does not require

exclusive reliance on extrajudicial conduct, prior “judicial rulings alone almost never constitute a

valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). A

reasonable person would not question Judge Larimer’s impartiality simply because the judge

presided over Canady’s prior criminal case. See id. at 556 (holding that a recusal motion based on

rulings and statements made in an earlier criminal bench trial was properly denied).

       As to the merits, the district court properly granted summary judgment. To state a prima

facie case for Title VII retaliation a plaintiff must show: “(1) participation in a protected activity;

(2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a

causal connection between the protected activity and the adverse employment action.” Hick v.

Baines, 593 F.3d 159, 164 (2d Cir. 2010). Retaliation claims are analyzed under the McDonnell

Douglas burden-shifting framework, which requires defendants to respond to a plaintiff’s prima

facie case by providing a “legitimate, non-retaliatory reason for the adverse employment action.”

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Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). A plaintiff must then show

that the employer’s retaliatory motive was a but-for cause of the adverse action “by demonstrating

weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered

legitimate, nonretaliatory reasons for its action.” Zann Kwan v. Andalex Group LLC, 737 F.3d 834,

846 (2d Cir. 2013).

       On appeal, Canady argues that, after he sued the University for racial discrimination and

filed an Equal Employment Opportunity Commission (EEOC) charge in 2013, the University

retaliated against him in two ways. First, he contends that it wrote a “negative reference letter”

about him. Pl.-Appellant Br. 18. The University counters that this letter did not amount to an

adverse employment action. An employment action is adverse if “it 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) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219

(D.C. Cir. 2006)). Canady seems to be referring to the University’s June 2013 Letter of

Expectations. The University wrote this letter after Canady was suspended for five days for

allegedly subjecting a coworker to repeated unwanted advances. Canady challenged his

suspension, and the University scheduled a hearing. A union organizer then negotiated with the

University to reduce Canady’s punishment from a suspension to a Letter of Expectations. The

letter ended Canady’s suspension, awarded him one day of back pay, and stated that, going

forward, Canady should “conduct himself in a professional and respectful manner at all times.”

Because the letter helped Canady by reducing his punishment, there is no reasonable question of

fact that it would not deter a reasonable person from making a charge of discrimination. Burlington



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N. & Santa Fe Ry., 548 U.S. at 68. Accordingly, summary judgment was properly granted on this

issue.

         Second, Canady asserts that the University fired him in retaliation for filing a lawsuit and

EEOC charge. But the University provided several legitimate, non-retaliatory reasons for his

termination: Canady purportedly had loud verbal altercations with and made unwanted advances

towards several coworkers. Apart from conclusorily saying that these allegations were false,

Canady did not make any showing that these non-retaliatory reasons were implausible,

inconsistent, or contradictory. See Zann Kwan, 737 F.3d at 846; see also Davis v. New York, 316

F.3d 93, 100 (2d Cir. 2002) (holding that “reliance upon conclusory statements or mere allegations

is not sufficient to defeat a summary judgment motion”). The district court was therefore correct

to hold that the defendants were entitled to summary judgment on this issue.

         Canady raises several other claims for the first time on appeal, and we decline to consider

them. See Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016).

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

Accordingly, we AFFIRM the judgment of the district court, and GRANT the motion to amend

the caption.

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




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