23-162 Tassy v. Buttigieg

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 2nd day of January , two thousand twenty-four.

PRESENT:

GUIDO CALABRESI, RICHARD J. SULLIVAN, MYRNA PÉREZ, Circuit Judges. _____________________________________

JEAN-CLAUDE TASSY,

Plaintiff-Appellant,

v. No. 23-162

PETE BUTTIGIEG, U.S. Secretary of Transportation,

Defendant-Appellee. _____________________________________ For Plaintiff-Appellant: PAUL T. SHOEMAKER, Greenfield Stein & Senior, LLP, New York, NY.

For Defendant-Appellee: NICOLE M. ZITO (Varuni Nelson, Ekta R. Dharia, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Brian M. Cogan, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Jean-Claude Tassy, a former employee of the Federal Aviation

Administration (the “FAA”), appeals from the district court’s grant of summary

judgment in favor of Defendant Pete Buttigieg, the United States Secretary of

Transportation (“Defendant”), on Tassy’s claim for retaliation under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 1 On appeal, Tassy argues

that the district court failed to properly consider his evidence and improperly

1 The district court also granted summary judgment as to Tassy’s free-standing constructive-discharge claim. Tassy does not appeal this aspect of the district court’s judgment. See Reply at 2 n.1.

2 credited evidence submitted by Defendant. We review a district court’s grant of

summary judgment de novo, see Kee v. City of New York,

, 157–58 (2d Cir.

2021), and will affirm when there is “no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).

We assume the parties’ familiarity with the underlying facts, procedural history,

and issues on appeal.

In considering Tassy’s Title VII retaliation claim, we employ the three-step

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

(1973). See Hicks v. Baines,

(2d Cir. 2010); see also Summa v.

Hofstra Univ.,

(2d Cir. 2013). To establish a prima facie case of

retaliation, Tassy must demonstrate that (1) he engaged in a protected activity;

(2) his exercise of that right was known to Defendant; (3) he suffered an adverse

employment action; and (4) there was a causal connection between the protected

activity and the adverse employment action. See Hicks,

. If Tassy

makes out this prima facie case, the burden then shifts to Defendant to articulate a

“legitimate, non-retaliatory reason” for the challenged action. Zann Kwan v.

Andalex Grp. LLC,

(2d Cir. 2013). If Defendant carries this

burden, Tassy must then present enough evidence so that a jury could find that

3 the reasons offered were a pretext for retaliation and “that retaliation was a ‘but-

for’ cause of the adverse action” – i.e., “that the adverse action would not have

occurred in the absence of the retaliatory motive.”

at 845–46.

In granting summary judgment for Defendant, the district court concluded

that Tassy failed to establish a prima facie case of retaliation at step one of the

McDonnell Douglas framework. The district court additionally concluded that,

even if it were to assume that Tassy had made a prima facie case, summary judgment

would still be warranted because, although Defendant met the requirements at

step two of the McDonnell Douglas test, Tassy failed to present evidence sufficient

to raise a genuine dispute of material fact as to whether retaliation was a but-for

cause of the challenged employment action. Because we agree that Defendant

met the step-two burden and Tassy failed to carry his burden at step three of the

McDonnell Douglas framework, we affirm the district court’s grant of summary

judgment in favor of Defendant.

Here, there can be no doubt that Defendant identified “legitimate,

non-retaliatory reason[s]” for the issuance of a Notice of Proposed Removal

(“NOPR”) following an investigation into Tassy’s workplace conduct.

.

Indeed, the NOPR specifically identified three ways in which Tassy had violated

4 FAA policy, particularly that he: (1) made unauthorized recordings of various

work-related meetings; (2) connected an unauthorized recording device to his

government-issued computer; and (3) exhibited a lack of candor when questioned

about this conduct. These documented incidents of workplace misconduct are

plainly sufficient to satisfy Defendant’s burden. See Desardouin v. City of

Rochester,

(2d Cir. 2013) (concluding that plaintiff’s “secret

recording[] of conversations,” which “was a felony and a violation of

departmental policy,” constituted a “legitimate, non-discriminatory” reason for

plaintiff’s termination); see also Ruiz v. County of Rockland,

(2d Cir.

2010) (“[M]isconduct may certainly provide a legitimate and non-discriminatory

reason to terminate an employee.” (internal quotation marks omitted)).

Because Defendant met the requirements at step two, the burden then

shifted to Tassy to raise a genuine dispute of material fact as to whether retaliation

was a “but-for” cause of the issuance of the NOPR. Zann Kwan, 737 F.3d at 845–

46. The district court did not err in concluding that Tassy failed to make this

showing.

As an initial matter, and contrary to Tassy’s contention, the district court did

not fail to acknowledge or address Tassy’s “strong direct evidence” of but-for

5 causation – namely, various statements made by Tassy’s manager Erik Anderson

during a tape-recorded conversation in October 2018. Tassy Br. at 28. The

district court clearly noted that it had explicitly rejected Tassy’s interpretation of

this same conversation in a prior decision granting summary judgment in Tassy’s

case alleging disparate treatment and hostile work environment claims, which was

affirmed on appeal. See Tassy v. Buttigieg,

(2d Cir. 2022)

(concluding that Tassy’s evidence – including his conversation with Anderson –

was “insufficient to create a genuine dispute” that his purported treatment at the

FAA was “motivated by hostility to [his] race, color, or national origin”). 2 As to

Tassy’s assertion that, in the course of this conversation, Anderson

“acknowledged the existence of retaliation by co-workers” after Tassy filed an

Equal Employment Opportunity (“EEO”) complaint, Tassy Br. at 27, we see no

reason to revisit our prior determination that Anderson’s statements were “mere

speculation” that could not “support the inference that the employees were

actually mistreating Tassy.” Tassy,

. Nor are we persuaded that

2 To the extent that Tassy claims Anderson’s purportedly retaliatory animus was racially motivated, we agree with the district court’s – and our own – previously stated conclusion that this conversation does not support a reasonable inference that Anderson’s statements implicated or related to Tassy’s protected characteristics. See Tassy v. Buttigieg,

, 238 n.8 (E.D.N.Y. 2021), aff’d,

(2d Cir. 2022).

6 Anderson’s statements reveal “weaknesses, implausibilities, inconsistencies, or

contradictions in [Defendant’s] proffered legitimate, non[-]retaliatory reasons” for

the issuance of the NOPR or otherwise suggest that those reasons were pretextual.

Zann Kwan,

; see also Ortiz v. Dep’t of Transp., No. 22-644,

, at *2 (2d Cir. Apr. 4, 2023) (concluding that final decisionmaker’s

statement was insufficient to show pretext in light of employee’s documented

disciplinary infractions); Alexander v. Bd. of Educ.,

(2d Cir.

2016) (finding that alleged remarks were insufficient to show pretext when

intervening investigation revealed employee’s misconduct).

We likewise reject Tassy’s contention that his indirect evidence – considered

in its totality – was sufficient to support a reasonable inference of retaliatory

animus. Although Tassy insists that his supervisors did not convey to the human

resources (“HR”) employees involved in issuing the NOPR that he believed he had

been excluded from training opportunities, there is nothing to suggest that this

information would have affected the FAA’s investigation of Tassy or its decision

to issue the NOPR. The asserted conduct on the part of Tassy’s supervisors

therefore does not support an inference of retaliatory intent.

7 Tassy’s various challenges to the integrity of the NOPR process fare no

better. For example, Tassy’s contention that the FAA failed to meaningfully

consider “lesser penalties” before issuing the NOPR, Tassy Br. at 12, 29, is belied

by the record, which reflects that other penalties were “[n]ot really” discussed

because “the charges were so egregious in this case that it seemed clear that

removal was the only option.” App’x at 237. Record testimony also indicated

that those involved in determining the appropriate penalty consulted the table of

penalties and considered the applicable mitigating factors before reaching a

decision. Tassy’s conclusory, unsupported assertions that this testimony was

“false,” “fabricated,” “vague,” and from “interested witnesses,” Tassy Br. at 31;

Reply at 14–15, are insufficient to cast doubt on the otherwise undisputed evidence

in the record. See Major League Baseball Props., Inc. v. Salvino, Inc.,

(2d Cir. 2008); Jeffreys v. City of New York,

(2d Cir. 2005).

Similarly, the fact that the FAA issued the NOPR despite there being “no precedent

for such action,” Tassy Br. at 13; see also id. at 30, is of no moment, since the

8 uncontroverted evidence showed that those involved in the NOPR process could

not find any cases with a comparable level of misconduct. 3

Tassy’s claim that those involved in the NOPR process were “not

independent,” id. at 12, is likewise insufficient to raise a genuine question as to

whether the investigation and proceedings were legitimate. As the district court

noted, Tassy produced no evidence suggesting that the participating individuals

were biased and did not question the impartiality or independence of several

individuals involved in his investigation and subsequent proceedings. And

although Tassy makes much of the fact that the individuals involved did not

review the content of the recordings he created, the mere existence of these

recordings was enough to support the conclusion that Tassy had violated

3 Throughout his brief, Tassy repeatedly asserts that he was treated uncharacteristically harshly for the charged misconduct. See, e.g., Tassy Br. at 30 (noting that his charges and penalty were “excessive and unprecedented”); id. at 33 (questioning whether he was treated in a “much more severe way” and whether he received “much more severe consequences” in light of his EEO complaint); id. at 38 (referencing his statement that “he had observed others taping training sessions and that none of them were disciplined”). But Tassy offers no evidentiary support for this contention, and he has certainly not identified any comparators – i.e., employees who faced three separate disciplinary charges or who were subject to charges of a similar nature and severity – that would support a reasonable inference that Tassy was treated differently in light of his EEO complaint. See Carr v. N.Y.C. Transit Auth.,

(2d Cir. 2023) (“[T]he alleged retaliatory actions were the result of generally applicable workplace policies and [plaintiff] has not adduced evidence that these policies were applied to h[im] and not others.”).

9 FAA policy. 4 Tassy’s attempt to cast the FAA’s enforcement of this policy as

“railroading,” id. at 31, is therefore unavailing.

Finally, because Tassy has advanced no other viable evidence of pretext, his

remaining argument that the timing of the NOPR supports an inference of

retaliation fails because he cannot carry his burden at step three based solely on

temporal proximity. See Bentley v. AutoZoners, LLC,

(2d Cir. 2019).

Accordingly, we agree with the district court that Tassy failed to create a genuine

dispute of material fact as to whether the legitimate, non-retaliatory reasons

Defendant offered to justify the issuance of the NOPR were pretextual or whether

retaliation was the but-for cause of the issuance of the NOPR.

We have considered Tassy’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

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

4 On appeal, Tassy argues that his making of tape recordings to “obtain and preserve evidence to support his claims of discrimination” constituted a protected activity, for which he could not be disciplined. Tassy Br. at 35–39. However, even if it could be argued that some of Tassy’s recordings were made for this purpose, Tassy himself conceded in the course of the investigation that not all of them were. As a result, there can be no question that Defendant was entitled to discipline Tassy for making unauthorized recordings in violation of FAA policy.

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