JENNIFER BERKELEY CARR v. NEW YORK CITY TRANSIT AUTHORITY, MARVA BROWN, AND DAVID CHAN
No. 22-792-cv
United States Court of Appeals for the Second Circuit
August 7, 2023
August Term 2022
ARGUED: MAY 18, 2023
Plaintiff-Appellant Jennifer Berkeley Carr appeals from a judgment of the United States District Court for the Southern District of New York (Broderick, J.) dismissing her claims of age, race, and gender discrimination and retaliation under the Age Discrimination in Employment Act,
On appeal Carr asserts that the district court applied an incorrect legal standard to her retaliation claim and that it erroneously concluded that she had failed to demonstrate that Dеfendants-Appellees’ race neutral explanations for not selecting her for two internal promotions were pretextual. First, we hold that Carr has not demonstrated that Defendants-Appellees’ explanations for her non-promotions were pretextual. Second, we hold that although the district court applied an incorrect standard to her retaliatory hostile work environment claim, Carr has nevertheless failed to make out a prima facie case of retaliation and did not demonstrate that her employer‘s non-retaliatory explanations were pretextual. We therefore AFFIRM the judgment of the district court.
GREGORY G. SMITH, (Janet J. Lennon, on the brief), Law Office of Gregory Smith, Brooklyn, NY, for Plaintiff-Appellant.
MARIEL A. THOMPSON, Executive Agency Counsel New York City Transit Authority, New York, NY, for Defendants-Appellees.
Jennifer Berkeley Carr appeals from a judgment of the United States District Court for the Southern District of New York (Broderick, J.). The district court granted the motion of the New York City Transit Authority, Marva Brown, and David Chan (collectively, “NYCTA“) for summary judgment and dismissed Carr‘s claims of age, race, and gender discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA“),
On appeal, Carr contends that the district court applied an incorrect legal standard to her retaliation claim and that it erroneously concluded that she had failed to demonstrate that the NYCTA‘s race neutral explanations for its failure to promote her were pretextual. First, we hold that Carr has not demonstrated that the NYCTA‘s explanations for her two non-promotions were pretextual. Next, we conclude that although thе district court applied an incorrect standard to her retaliatory hostile work environment claim, Carr has nevertheless failed to make out a prima facie case of retaliation or demonstrate that the NYCTA‘s explanations for its actions were pretextual. We therefore AFFIRM the judgment of the district court.
BACKGROUND
Carr, an “African-American female of Caribbean descent” born in 1955, worked for the New York City Transit Authority (the “Transit Authority“) from 2000 to 2022. Joint App‘x at 1103 ¶ 4. Carr holds a bachelor‘s degree in economics and a mаster‘s degree in public administration. During the relevant period, Carr worked as a director in the Transit Authority‘s Capital Programs Department with the title Director of Telecommunications and Systems, Capital Programs.
Carr does not allege that either man promoted was unqualified. It is uncontested that both men had worked at the Transit Authority longer than Carr and had technical backgrounds that Carr lacked. What is more, one of the interviewers for the second promotion testified that Chan interviewed particularly well, and that Carr was openly hostile toward Brown in her interview. After receiving the promotion, Chan became Carr‘s supervisor.
In September 2014, after failing to receive the two promotions she had sought, Carr filed a complaint with the Transit Authority‘s Equal Employment Opportunity Office. In May 2015, she filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission. After receiving a right-to-sue letter, Carr initiated this lawsuit in December 2016. In her amended complaint, she alleged that the NYCTA discriminated against her on the basis of
Carr alleges that after she began to report discrimination in September 2014, her relationships with her supervisors and her performance evaluations deteriorated, which she attributes to retaliation. Among other things, Carr asserts that Chan was disrespectful аnd hostile to her in emails; that Chan assigned her increased job responsibilities including responsibility for Elevator and Escalator Communications, compiling a new Employee Training Manual, and completing various other reports; that Chan threatened to cancel her vacation time if she did not complete her projects; and that analysts who worked under her were removed.
Despite these conflicts, Carr received “Good” performance reviews in 2014 and 2015, a decline from her previous “Excellent” ratings, but a rating that did not affect her compensation or position. In both her 2016 and 2017 annual reviews, however, Carr received a “Needs Improvement” rating that prevented her from receiving a wage increase. Carr retired in 2022. She contends that her mistreatment, including the increased workload and the negative evaluations, was in retaliation to her complaints of discrimination. In
The NYCTA moved for summary judgment and the district court granted it. The district court first held that although Carr had made out a prima facie case of a discriminatory non-promotion, she had failed to demonstrate that the reasons the NYCTA provided for promoting DiLorenzo and Chan were pretextual. Carr v. N.Y.C. Transit Auth., No. 16-cv-9957 (VSB), 2022 WL 824367, at *9–12 (S.D.N.Y. Mar. 18, 2022). The district court noted that Carr had failed to identify any inconsistencies in the hiring criteria and сoncluded that she had relied on “speculation alone” to support her discrimination claim. Id. at *12 (quotation marks omitted).
The district court then analyzed Carr‘s retaliation claims and found that she had not made out a prima facie case because she failed to provide admissible evidence tending to show the alleged retaliatory actions, such as the “Needs Improvement” performance reviews, were caused by her complaints of discrimination or that the retaliation against her was “sufficiently severe or pervasive to alter the conditions of [her] employment” and therefore she could not make out a prima facie case for a retaliatory hostile work environment. Id. at *14–15 (quotation marks omitted).
Finally, the district court concluded that, even assuming that Carr had made out a prima facie case, she had failed to demonstrate that the NYCTA‘s legitimate, non-discriminatory reasons for the alleged retaliatory actions were pretextual. Id. at *15. The district court concluded that “[t]here is ample record evidence to support Defendants’ stated belief that Plaintiff was not doing her job adequately and was unpleasant and difficult to work with, thus
DISCUSSION
We review the district court‘s grant of summary judgment de novo. See Rasmy v. Marriott Int‘l, Inc., 952 F.3d 379, 386 (2d Cir. 2020). “In evaluating such motions, the district court must resolve any doubts and ambiguities and draw all reasonable inferences in favor of the nonmoving party.” Id. “Summary judgment is required if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Covington Specialty Ins. Co. v. Indian Lookout Country Club, Inc., 62 F.4th 748, 752 (2d Cir. 2023) (internal quotation marks omitted).
I. Discrimination Claims
Carr asserts that age, race, and gender discrimination motivated the decision not to select her for senior director positions. Discrimination claims under Title VII, the ADEA, and Section 1981 are analyzed under the McDonnell Douglas burden-shifting framework. See Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012); Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). Under this familiar framework, “once a plaintiff has established a prima facie case of discrimination, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer‘s action against the employee. If the employer does so, then the burden shifts back to the employee to show that the employer‘s articulated reason is pretext for discrimination.” Truitt v. Salisbury Bank & Tr. Co., 52 F.4th 80, 86–87 (2d Cir. 2022) (cleaned up).
The district court concluded, and the parties do not dispute, that Carr established a prima facie case of discrimination on the basis оf race, sex, and age and that the defendants proffered a non-discriminatory reason for not promoting her – that the two younger men who Brown hired instead of Carr had worked at the Transit Authority longer, had technical backgrounds she lacked, and interviewed better. See Carr, 2022 WL 824367, at *9–10. The dispute is over the third step: pretext.
As proof of pretext, Carr points to perceived inconsistencies in the hiring criteria and changes to the hiring process, such as that the original job descriptions did not specify a technical background was required and the panel of interviewers changed between the first and second openings she applied for. The district court concluded that no reasonable juror could find that the reasons the NYCTA provided for selecting the other candidates for promotions were pretextual. The district court observed that there was nothing inconsistent about the NYCTA‘s explanations for why DiLorenzo and Chan were promoted over Carr. Id. at *12.
We agree. The NYCTA adduced evidence that DiLorenzo or Chan were equally, if not more, qualified for the positions than Carr, and there is no allegation that any impermissible promotion criteria were used. See Burdine, 450 U.S. at 259 (“[T]he employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria.“). While “entirely ignor[ing]” explicit hiring criteria or an “unprecedented” departure from an employer‘s established hiring practice can show pretext, Carr‘s allegations regarding minor variations in the hiring process and the
II. Retaliation Claims
Carr also claims that she was retaliated against for complaining that Brown‘s promotion decisions were discriminatory. Although retaliation claims under Title VII are governed by
In Burlington Northern, a railroad employee, White, claimed that she was retaliated against after successfully raising gender discrimination concerns. Burlington Northern, 548 U.S. at 58. The alleged retaliation consisted of, among other things, White‘s reassignment from forklift duty to “track laborer tasks,” which were more arduous. Id. The Supreme Court granted certiorari tо resolve a circuit split regarding “whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation.” Id. at 60–61.
Burlington Northern focused on the difference between two sections of Title VII: its antidiscrimination provision,
The Court then defined the level of harm necessary for an alleged retaliatory action to support a prima facie case of retaliation. It held that “a plaintiff must show that a reasonable employee wоuld have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks omitted). The Court rejected the reasoning of some circuits, which required that a retaliation plaintiff show a “materially adverse change in the terms and conditions of employment,” just like in the substantive discrimination context. Id. at 60 (internal quotation marks omitted). However, the Court emphasized that to be “materially advеrse,” an action must cause more than “trivial harms” because “[a]n employee‘s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” Id. at 68. Harms such as these were not actionable, it held, because they would not deter reasonable employees from making complaints of discrimination. Id. Applying this holding to the retaliation alleged by White, the Court held that her reassignment was a materially adverse action. Id. at 70–71.
As mentioned above, Burlington Northern stands for the proposition that the definition of “adverse action” in the Title VII
Following Burlington Northern, this Court noted that “the harm element of a retaliation claim is not to be analyzed in the same way as the harm from an alleged substantive act of discrimination,” Davis-Garett, 921 F.3d at 43, and that “[p]rior decisions of this Circuit that limit unlawful retaliation to actions that affect the terms and conditions of employment, no longer represent the state of the law,” Hicks, 593 F.3d at 165 (internal citations omitted). Recently, the Fourth Circuit correctly applied Burlington Northern to a retaliatory hostile work environment claim in Laurent-Workman v. Wormuth, 54 F.4th 201 (4th Cir. 2022). It held that to make out a prima facie case of a retaliatory hostile work environment, a plaintiff must allege that the retaliatory actions would “dissuade a reasonable worker from making or supporting a charge of discrimination.” Laurent-Workman, 54 F.4th at 218 (quoting Burlington Northern, 548 U.S. at 68). It then concluded that “the consistent (even if nоt constant) conduct Laurent-Workman alleges plausibly qualifies as materially adverse” and that she “has adequately pled that a reasonable employee may have been dissuaded from following through with her complaints.” Id. We find this decision persuasive because it follows the standard set forth in
Applying Burlington Northern‘s unified standard, we hold that to satisfy the third element of a prima facie retaliation case, a plaintiff need оnly show that the allegedly retaliatory actions, taken either singularly or in the aggregate, were “materially adverse.” A claim of “retaliatory hostile work environment” must therefore be treated identically to a claim that an employer took multiple retaliatory actions that were, in the aggregate, “materially adverse.”
Accordingly, we hold that to establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she engaged in protected activity, (2) the defendant was aware of that activity, (3) she was subjected to a retaliatory action, or a series of retaliatory actions, that were materially adverse, and (4) there was a causal connection between the protected activity and the materially adverse action or actions.2 As we have noted, under Burlington Northern, a “materially adverse” action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” 548 U.S. at 68 (quotation marks omitted).
On appeal, Carr primarily argues that she was subjected to a retaliatory hоstile work environment, and that the district court erred by using the incorrect standard in concluding that the NYCTA‘s treatment of her, in the aggregate, was not materially adverse. The NYCTA counters that Carr must make the same showing as she would to make out a prima facie case in a discriminatory hostile work environment claim, i.e., that she must show the retaliatory actions were sufficiently severe and pervasive that they altered the terms and
Although the NYCTA‘s test for a retaliatory hostile work environment was not fully consistent with Burlington Northern, we nevertheless conclude that Carr failed to make out a prima facie case because the allegedly retaliatory actions were not materially adverse. Carr argues that her diminishing performance ratings, not having analysts reporting directly to her, being assigned additional projects, and Chan‘s hostilе tone in emails, together constitute unlawful retaliation. However, the alleged retaliatory actions were the result of generally applicable workplace policies and Carr has not adduced evidence that these policies were applied to her and not others. We have held that absent allegations of more direct hostile conduct, a reasonable employee would not be dissuaded from taking protected action simply because they are subject to thе same policies as other employees. Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568, 570-71 (2d Cir. 2011). We conclude that these complaints, even when taken in the aggregate, would not dissuade a reasonable employee from lodging a complaint and therefore, they were not materially adverse.
To be sure, Carr‘s “Needs Improvement” performance reviews in 2016 and 2017, which made her ineligible for raisеs, constitute materially adverse actions on their own. But even assuming arguendo that Carr could establish that her complaints of discrimination caused the poor performance evaluations, the district court correctly concluded that Carr‘s claim would fail at the third step of the McDonnell Douglas burden-shifting framework because she cannot establish pretext. Carr, 2022 WL 824367, at *15.
The NYCTA‘s evidence supporting summary judgment established that Carr received negative performance evaluations because she was not adequately or timely complеting her duties and had become increasingly challenging to work with. Carr has not rebutted this showing with evidence demonstrating that the reasons the NYCTA provided for the poor performance reviews were pretextual. Instead, she argues that the performance reviews must have been retaliatory due to their temporal proximity to her complaints. But she offers nothing more to establish causation and we have been clear that temporal proximity “alone is insufficient to defeat summary judgment at the pretext stаge.” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 847 (2d Cir. 2013). Absent other evidence, no factfinder could reasonably determine that Carr‘s protected activities
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.