18‐687‐cv DʹAndrea v. Nielsen 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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 5th day of April, two thousand nineteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x LEONARDO DʹANDREA, Plaintiff‐Appellant, v. 18‐687‐cv KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security, Defendant‐Appellee. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PLAINTIFF‐APPELLANT: ALAN E. SCHOENFELD (Sharon Cohen Levin, Jack Zarin‐Rosenfeld, Swapna Maruri, Michael J. Morillo, on the brief), Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York.

FOR DEFENDANT‐APPELLEE: STEPHEN CHA‐KIM, Assistant United States Attorney (Christopher Connolly, Assistant United States Attorney, on the brief), for

Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

Appeal from the United States District Court for the Southern District of New York (Hellerstein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED IN PART, and the matter is REMANDED for further proceedings.

Plaintiff‐appellant Leonardo DʹAndrea, a Senior Special Agent in the Department of Homeland Security (ʺDHSʺ), appeals the district courtʹs January 12, 2018 judgment granting summary judgment in favor of defendant‐appellee Elaine Duke, the then‐Acting Secretary of DHS, on DʹAndreaʹs retaliation and hostile work environment claims against DHS under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et seq. The district court explained its reasoning in an order entered January 11, 2018.

We assume the partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.

The following facts are viewed in the light most favorable to DʹAndrea.

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013).1 Since

1 Some of these facts are taken from DʹAndreaʹs second amended verified complaint. A verified pleading that contains ʺallegations on the basis of the plaintiffʹs personal knowledge, ‐ 2 ‐

2001, DʹAndrea has been employed by DHS and its predecessor agency. In 2008, DʹAndrea was a witness in two employment discrimination proceedings brought by his coworkers against DHS. On May 5, 2008, DʹAndrea testified in court in one of the proceedings. A few months later, in July or August 2008, DʹAndrea participated in another coworkerʹs action by submitting answers to a written questionnaire.

DʹAndrea alleges that DHS engaged in two acts of retaliation against him because he participated in these actions. First, in March 2010, DHS removed DʹAndrea as a case agent on an investigation that he initiated and developed. Second, on April 4, 2010, DHS suspended DʹAndrea for six days because of an April 2007 incident at the John F. Kennedy International Airport (ʺJFK Airportʺ) in which he drew his firearm on two civilians.

In addition, DʹAndrea alleges that DHS created a hostile work environment by: passing him over for the position of acting supervisor in favor of a more junior agent; failing to assist DʹAndrea after he reported hostile treatment by his then‐supervisor Thomas Mulhall; suspending him for six days for the JFK Airport incident; suspending him for twelve days for taking leave without permission; assigning a parking spot to a more junior agent that should have been assigned to him

and not merely on information and belief, has the effect of an affidavit and may be relied on to oppose summary judgment.ʺ Patterson v. Cty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004).

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based on seniority; mandating he work six calendar days in a row; and altering his work schedule without consultation or reasonable advance notice.

On February 22, 2017, DʹAndrea filed his second amended complaint, alleging that DHS violated Title VII by retaliating against him and creating a hostile work environment. On January 11, 2018, the district court granted summary judgment in favor of DHS, dismissing the second amended complaint. Judgment was entered January 12, 2018. This appeal followed.

STANDARD OF REVIEW ʺWe review de novo the district courtʹs grant of summary judgment, construing the evidence in the light most favorable to the non‐moving party and drawing all reasonable inferences in [his] favor.ʺ Mihalik, 715 F.3d at 108. Summary judgment is appropriate only if ʺthere is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). ʺEven in the discrimination context, . . . a plaintiff must provide more than conclusory allegations . . . and show more than some metaphysical doubt as to the material facts.ʺ Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks omitted).

DISCUSSION This appeal presents two issues: whether the district court properly granted summary judgment as to (1) the retaliation claim and (2) the hostile work environment claim. We analyze each issue in turn.

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I. Retaliation A. Applicable Law Title VII retaliation claims are generally reviewed under the three‐step, burden‐shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). First, the plaintiff must establish a prima facie case of retaliation by showing: (1) he participated in a protected activity; (2) the defendant knew of the protected activity; (3) there was ʺan adverse employment actionʺ; and (4) there was ʺa causal connection between the protected activity and the adverse employment action.ʺ Id. at 844 (internal quotation marks omitted). The plaintiff has the burden of proof at this step, but the burden is ʺminimal.ʺ Id. (internal quotation marks omitted).

Second, if the plaintiff establishes a prima facie case, ʺthe burden shifts to the employer to articulate some legitimate, non‐retaliatory reason for the employment action.ʺ Id. at 845. Lastly, if the defendant proffers a legitimate, non‐retaliatory reason for the adverse action, the burden shifts back to the plaintiff to show that the defendantʹs reason is ʺa mere pretext for retaliation.ʺ Id. The plaintiff also ʺmust show that retaliation was a ʹbut‐forʹ cause of the adverse action, and not simply a ʹsubstantialʹ or ʹmotivatingʹ factor in the employerʹs decision.ʺ Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 348 (2013)). This but‐for reason need not be the only cause for the

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employerʹs action; however, the plaintiff must show that ʺthe adverse action would not have occurred in the absence of the retaliatory motive.ʺ Id. at 846.

ʺThe ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff remains at all times with the plaintiff,ʺ Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (alteration omitted) (quoting St. Maryʹs Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)), and on summary judgment, ʺthe governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited [retaliation] occurred,ʺ James v. N.Y. Racing Assʹn, 233 F.3d 149, 156 (2d Cir. 2000).

B. Application DʹAndrea argues that DHS retaliated against him for participating in his coworkersʹ employment actions by (1) suspending him for six days and (2) removing him as a case agent. DʹAndrea challenges the district courtʹs conclusion that he failed to make out a prima facie case of retaliation, and that he failed to show that DHSʹs reasons for its actions were pretextual.

Here, DʹAndrea has failed to establish a prima facie case because he has not presented sufficient evidence to permit a jury to find a causal connection between his protected activity and his suspension and removal. Causation can be proven (1) directly ʺthrough evidence of retaliatory animus directed against the plaintiff by the defendantʺ; or (2) indirectly either (a) ʺby showing that the protected activity was

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followed closely by discriminatory treatment,ʺ or (b) ʺthrough other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct.ʺ Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). DʹAndrea has not provided evidence of retaliatory animus or non‐speculative evidence that his fellow employees were treated differently for engaging in similar conduct.

Moreover, causation cannot be inferred from the temporal relationship of DʹAndreaʹs suspension and removal and his protected activity. While we have declined to draw ʺa bright line to define the outer limits beyond whichʺ temporal proximity may be established, we have generally held that causation can only be inferred after the passage of a few weeks or months, Gorman‐Bakos v. Cornell Coop. Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001) (collecting cases), and have held that a delay of more than a year is fatal to a showing of causation, see, e.g., Cortes v. MTA New York City Transit, 802 F.3d 226, 233 (2d Cir. 2015) (refusing to infer causation based on 14‐month gap); Burkybile v. Bd. of Educ. of the Hastings‐On‐Hudson Union Free Sch. Dist., 411 F.3d 306, 314 (2d Cir. 2005) (same based on a delay of more than a year). Here, DʹAndrea engaged in protected activity in May 2008 and July or August 2008. DʹAndrea was not removed as a case agent until March 2010, and he was not suspended until April 2010.

Because nearly two years passed between DʹAndreaʹs protected activity and DHSʹs adverse actions, we cannot reasonably infer a causal nexus and thus his prima facie case fails.

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Even assuming DʹAndrea met his minimal burden of establishing a prima facie case of retaliation, as required under McDonnell Douglas, DʹAndreaʹs retaliation claim still fails. DHS has articulated ʺlegitimate, non‐discriminatory reason[s]ʺ for suspending DʹAndrea (the JFK Airport incident) and for removing DʹAndrea as a case agent (his late submission of investigation reports). We therefore turn to the ultimate question of whether DʹAndrea has adduced sufficient evidence from which a reasonable factfinder could conclude that he was retaliated against because of his protected activity.

We hold that DʹAndrea has failed to present evidence from which a reasonable jury could conclude either that DHSʹs reasons were pretextual and that discriminatory retaliation occurred or that any retaliation was the ʺbut‐forʺ cause of his suspension and removal. Nassar, 570 U.S. at 360; Gordon, 232 F.3d at 117‐18. DHS suspended DʹAndrea for his April 2007 actions at the JFK Airport. DʹAndrea argues that DHSʹs reason for his suspension is pretextual because he claims the investigation into the JFK Airport incident was flawed for not interviewing ʺkey witnessesʺ and ʺpicked up steam only when it became clear that DʹAndrea was going to testify against [DHS].ʺ Appellantʹs Br. at 22‐23. It is undisputed, however, that DʹAndrea drew his weapon on two civilians and that the investigation of the incident included interviews of at least six witnesses, including four eyewitnesses, as well as interviews of, and a written submission by, DʹAndrea. Nor was the investigation completely ʺdormantʺ prior to April 2008, as DʹAndrea alleges. The matter was referred for administrative

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inquiry in April 2007, and DHS formally assigned agents to investigate in September 2007. On November 27, 2007, the investigators interviewed DʹAndrea about the incident. Thus, the investigation was well underway at the time DʹAndrea engaged in protected activity.

DʹAndrea argues that his direct supervisor, Steven Yagoda, and four other agents with ʺvaluable contemporaneous knowledge of [his] conduct,ʺ should have been interviewed. Appellantʹs Br. at 23.2 Aside from Yagoda, none of the witnesses submitted an affidavit to support DʹAndreaʹs statements. Moreover, while Yagoda submitted an affidavit that ʺ[t]here was no improper use of force,ʺ Appʹx. at 1278, neither he nor any of the other witnesses identified by DʹAndrea had personal knowledge of the incident because they were not present at JFK Airport at that time, see Patterson, 375 F.3d at 219 (ʺAffidavits submitted . . . in opposition to the summary judgment motion must be made on personal knowledge . . . .ʺ (internal quotation marks omitted)). DʹAndrea, therefore, merely speculates that his witnesses would have provided exculpatory evidence. See DʹAmico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (ʺThe non‐moving party may not rely on mere . . . speculation, but instead must offer some hard evidence showing that its version of the events is not wholly

2 The other individuals DʹAndrea believes should have been interviewed include: Acting Group Supervisor Donald Swiatocha, Acting Assistant Special Agent‐in‐Charge (ʺSACʺ) Raymond Barrett, Deputy SAC Mona Forman, and Acting Deputy SAC James Modico. SAC Modico, however, was in fact interviewed on May 9, 2008.

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fanciful.ʺ). Furthermore, ʺ[t]emporal proximity alone is insufficient to defeat summary judgment at the pretext stage.ʺ Zann Kwan, 737 F.3d at 847.

In addition, DʹAndrea argues that DHSʹs reason for removing him as a case agent ‐‐ i.e., because his reports of investigation were late ‐‐ is pretextual because (1) there is a dispute as to whether he violated a DHS policy; (2) he was never reprimanded and never received a negative performance review before he was removed; and (3) no other employees were removed for filing late reports of investigation. DʹAndrea admitted, however, that two supervisors had warned him about the timeliness of his reports of investigation, including multiple warnings for a case that started in September 2009 ‐‐ i.e., the case from which he was removed.

DʹAndrea, moreover, admitted that he and his entire unit were on notice about submitting reports because of criticism regarding the agencyʹs practices for reports of investigation by the United States Attorneyʹs Office. In addition, while DʹAndrea argues he was treated differently, he provides no evidence aside from his own speculative statements that he was in fact treated differently. See DʹAmico, 132 F.3d at 149. DʹAndrea, therefore, has failed to provide evidence that his removal as a case agent ʺwould not have occurred in the absence of the retaliatory motive.ʺ Zann Kwan, 737 F.3d at 846; see also Hicks, 509 U.S. at 515 (ʺ[A] reason cannot be proved to be ʹa

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pretext for discriminationʹ unless it is shown both that the reason was false, and that [retaliation] was the real reason.ʺ (internal quotation marks omitted)).

Accordingly, we affirm dismissal of this claim.

II. Hostile Work Environment We understand DʹAndrea to argue that DHS created a hostile work environment in retaliation against him because he engaged in protected conduct. The question is whether a plaintiff may assert an independent hostile work environment claim alleging animus based on protected activity (as opposed to animus based on membership in a protected class, see 42 U.S.C. § 2000e‐2), or whether the acts that would formulate such a claim are part and parcel of the adverse employment action element of a traditional retaliation claim, see 42 U.S.C. § 2000e‐3(a).

The parties have not briefed this issue, and the district court did not discuss DʹAndreaʹs hostile work environment claim at all. We, therefore, conclude that the claim is better addressed by the district court in the first instance. See United States v. Gomez, 877 F.3d 76, 92 (2d Cir. 2017) (ʺIn general, a federal appellate court does not consider an issue not passed on below.ʺ (internal quotation marks omitted)).

Accordingly, we remand this claim pursuant to United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), for the district court to answer the following questions: 1. Whether there is an independent claim for a hostile work environment under 42 U.S.C. § 2000e‐2 based on retaliatory‐animus toward a plaintiffʹs protected activity; and ‐ 11 ‐

2. If so, whether the evidence adduced at summary judgment in this case was sufficient for a reasonable jury to find that DʹAndrea was subject to a hostile work environment based on his protected activity.

We request that the district court address these issues as soon as practicable, and that once the district court has decided these issues on remand, the parties promptly notify the clerk of this Court, whereupon jurisdiction will be restored to this Court and to this panel.

* * * Accordingly, we AFFIRM IN PART, VACATE IN PART, and REMAND for further proceedings consistent with this order.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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