William K. HARRISON, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee, John E. Potter, Postmaster General, Defendant-Appellee.
No. 10-3665-cv.
United States Court of Appeals, Second Circuit.
Dec. 8, 2011.
2. CAT Protection Eligibility
With respect to Chen‘s CAT claim based on his illegal departure, we employ the same assumptions as the BIA, i.e., that Chen‘s testimony that he was beaten upon repatriation for a prior illegal departure from China was credible. See Yan Chen v. Gonzales, 417 F.3d at 271-72. Nevertheless, we conclude that the BIA reasonably determined that Chen‘s testimony was insufficient to demonstrate that he was more likely than not to face torture if returned to China. General evidence from State Department reports or human rights organizations indicating that some repatriated Chinese have been subjected to torture was insufficient to establish this likelihood. Rather, Chen was required to present “additional particularized evidence to support [his] claim.” Mu Xiang Lin v. U.S. Dep‘t of Justice, 432 F.3d 156, 160 (2d Cir.2005). Insofar as Chen testified to his own past beating, the record does not compel the conclusion that this incident rose to the level of past torture so as to compel an inference of likely future torture. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir.2003) (holding that evidence that petitioner was beaten before leaving China and could be detained on repatriation was insufficient to vacate BIA denial of CAT relief); see also Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir.2004) (“A CAT claim focuses solely on the likelihood that the alien will be tortured if returned to his or her home country, regardless of the alien‘s subjective fears of persecution or his or her past experiences.“).
Thus, contrary to Chen‘s argument that the BIA disregarded his evidence, we conclude that the BIA reasonably found that evidence insufficient to establish his eligibility for CAT relief. See Xiao Ji Chen v. U.S. Dep‘t of Justice, 471 F.3d at 338 n. 17 (recognizing that court will presume that agency has considered all evidence unless record “compellingly suggests otherwise“).
3. Conclusion
For the foregoing reasons, Chen‘s petition for review is DENIED. As we have completed our review, any stay of removal that the court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot.
William K. HARRISON, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee,
No. 10-3665-cv.
United States Court of Appeals, Second Circuit.
Dec. 8, 2011.
Christopher Bellistri, Cronin & Byczek LLP, Lake Success, NY, for Appellant.
James Nicholas Boeving, Jeannette A. Vargas, Sarah S. Normand, Assistant United States Attorneys, for Preet Bharara, United States Attorney, Southern District of New York, New York, NY, for Appellees.
PRESENT: DENNIS JACOBS, Chief Judge, PETER W. HALL and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
William K. Harrison appeals the district court‘s grant of summary judgment dismissing Harrison‘s claims of unlawful retaliation under
We review a grant of summary judgment de novo and draw all inferences in favor of the nonmoving party. El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.2010) (per curiam). “Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. (internal quotation marks omitted). A genuine issue of fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (internal quotation marks omitted).
Retaliation claims are governed by the three-step burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff bears the burden of proving by the preponderance of the evidence a prima facie case of discrimination. In the retaliation context, this requires the plaintiff to show (1) that he participated in protected activity, (2) that he suffered an adverse employment action and (3) that a causal connection exists between the protected activity and the adverse employment action. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). If the plaintiff can make out a prima facie case of retaliation, the burden then shifts to the defendant to produce evidence that the adverse employment action was taken “for a legitimate, nondiscriminatory reason.” St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (internal quotation marks omitted). If the defendant meets its burden of production, the plaintiff must then prove, by a preponderance of the evidence, that the legitimate nondiscriminatory reason proffered by the defendant is pretextual, and that the true reason for the adverse employment action was the plaintiff‘s protected activity. See, e.g., Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
[1] Harrison argues that he applied for and was denied a number of promotions on account of his protected EEO activity. But he has failed to present any evidence of a causal connection between the alleged denials and his protected activity. The only evidence Harrison has presented from which an inference of causation may be drawn is the temporal proximity between his EEO activity and the denial of his promotions. However, even “[t]he cases that accept mere temporal proximity between an employer‘s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima
[2] Harrison next claims that he suffered retaliation when Freddie Burroughs, his wife‘s harasser, was transferred into Harrison‘s unit. However, as Harrison has previously conceded, Burroughs was transferred before Harrison first engaged in protected activity by testifying at his wife‘s EEOC hearing in November, 1995.
[3] Harrison claims that he was subjected to retaliation when he was denied differential pay after serving for a two-week period as Acting Manager of Distribution Operations (“AMDO“) while the Manager of Distribution Operations was on vacation. Harrison‘s temporary stint as an AMDO occurred before Harrison first contacted an EEO counselor or filed an EEO complaint of his own. Thus, a retaliation claim would have to be based on his testimony at his wife‘s EEOC hearing in November, 1995. But the temporal gap of almost two years between the date of this protected activity and the alleged retaliation is too great to give rise to an inference of causation. See Burkybile v. Bd. of Educ., 411 F.3d 306, 314 (2d Cir. 2005) (finding no causation where more than a year passed between protected activity and alleged retaliation). As Harrison has failed to present any other evidence of causation, no reasonable jury could find that Harrison was denied differential pay as a result of his protected activity.
[4] Harrison argues that he again suffered retaliation when he was transferred from the Automation Unit to the Transportation Unit in November of 1997. But the antiretaliation provision of
[5] Finally, Harrison argues that he was retaliated against when he was given only a short four-month detail in the Quality Unit while some other employees received longer details. The allegedly short duration of Harrison‘s detail does not constitute a materially adverse employment action. A detail is a discretionary and temporary assignment, and Harrison concedes that very few supervisors were permitted to go on detail at all. A reasonable person would not find that being given a discretionary and favorable assignment, even if for a short period of time, was materially adverse. See, e.g., Forkkio v. Tanoue, 131 F.Supp.2d 36, 42 (D.D.C.2001) (holding that the expiration of a plaintiff‘s temporary promotion was not an adverse employment action because
We have considered plaintiff‘s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Eliot S. SASH, Joyce Garland-Sash, Plaintiffs-Appellants, v. Eve ROSAHN, individually, in her capacity as the Supervising Attorney for the Parole Revocation Unit of Defendant The Legal Aid Society, The Legal Aid Society of New York, Defendants-Appellees.
No. 09-3170-cv.
United States Court of Appeals, Second Circuit.
Dec. 8, 2011.