Zann Kwan v. The Andalex Group, LLC

20 The plaintiff, Zann Kwan, is a former employee of The

21 Andalex Group LLC ("Andalex”). She appeals from a judgment of

22 the United States District Court for the Southern District of

23 New York dismissing her complaint. The District Court

24 (Forrest, J.), granted summary judgment dismissing the

25 plaintiff's claims of discrimination, retaliation, and hostile

26 work environment under Title VII of the Civil Rights Act of

27 1964, 42 U.S.C. § 2000e et seq. ("Title VII”); the New York

28 State Human Rights Law ("NYSHRL”), N.Y. Exec. Law § 296; and

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1 the New York City Human Rights Law ("NYCHRL”), N.Y.C. Admin.

Code § 8-107.1 2 The District Court also dismissed the

3 plaintiff's claim that Andalex violated the Employee

4 Retirement Income Security Act of 1974 ("ERISA”), 29 U.S.C.

5 § 1001 et seq. by failing to notify her of her right to

6 continuing health care coverage pursuant to the Consolidated

7 Omnibus Budget Reconciliation Act of 1985 ("COBRA”), 29 U.S.C.

8 § 1166 et seq.

9 On appeal, Kwan contends that she proffered sufficient

10 evidence that she was subjected to a hostile work environment

11 because of her gender and was retaliated against for

12 complaining about gender discrimination. Kwan also alleges

13 that the District Court abused its discretion by denying her

14 statutory penalties under COBRA. For the reasons that follow,

15 we affirm the judgment of the District Court except with

16 respect to Kwan's retaliation claims, as to which there are

17 genuine disputes as to material facts that preclude summary

18 judgment.

19

20

1 Although the plaintiff alleged claims of

discrimination on the basis of gender and national origin

under Title VII, the NYSHRL, and the NYCHRL, those claims have

not been pursued on appeal, and will therefore not be

discussed in this opinion.

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1

2 BACKGROUND

3 In reviewing the District Court's grant of summary

4 judgment in favor of Andalex, "we construe the evidence in the

5 light most favorable to the [plaintiff], drawing all

6 reasonable inferences and resolving all ambiguities in [her]

7 favor.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP,

8 735 F.3d 114, 118 (2d Cir. 2013) (citation and internal

9 quotation marks omitted).

10

11 I.

12 Andalex is a small family-owned real estate management

13 company specializing in large gaming and commercial

14 properties. Allen Silverman is the founder and Chief

15 Executive Officer. Allen's sons, Andrew and Alex, are the

16 Chief Investment Officer and Chief Operations Officer

17 respectively. Steven Marks is the Chief Financial Officer.

18 During the relevant time period, April 2007 to September 2008,

19 Andalex had approximately twenty to twenty-five employees.

20

21 A.

22 On April 9, 2007, Andalex hired the plaintiff to be Vice

23 President of Acquisitions. Kwan was an at-will employee and

24 was provided a six-figure salary, two weeks paid vacation,

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1 health insurance, and was eligible for a year-end

2 discretionary bonus. The plaintiff's primary duties at

3 Andalex involved analyzing cash flows, preparing financial

4 models and projections, and performing due diligence on

5 investment properties. From April to August 2007, the

6 plaintiff worked with Andrew Feder, the Managing Director of

7 Acquisitions. Feder testified that Kwan's work product was

8 "very good” and that he never had reason to criticize her

9 competence or diligence. After Feder left Andalex in August

10 2007, Kwan reported directly to Steven Marks until she was

11 terminated in September 2008. In November 2007, Andrew

12 Silverman complimented Kwan's work and told her to "[k]eep up

13 the good work.” In December 2007, she received a bonus of

14 $5,000.

15 On September 24, 2008, Andalex terminated Burton Garber,

16 a male Andalex executive who had been with the company for

17 several years. On September 25, 2008, Kwan left the office at

18 5:15 p.m., earlier than the standard departure time of 6:00

19 p.m. Andalex alleges that when Marks asked Kwan where she was

20 going, she replied that she was leaving to play squash. Marks

21 asked Kwan's status on a project and she said that she would

22 work on it the following day and left the office. The

23 plaintiff alleges that she received permission from Marks to

24 leave early, that her leaving had no effect on her work, and

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1 that September 25 was the first time she had ever left the

2 office before 6:00 p.m.

3 The next morning, September 26, 2008, Marks met with Kwan

4 and reprimanded her for leaving work early without permission.

5 Amy Piecoro, the Director of Human Resources at Andalex, was

6 present at the meeting. Although Marks testified that he had

7 previously told the plaintiff not to leave early without

8 permission and not to take long lunch breaks, Kwan testified

9 that the September 26 meeting was the first time she had

10 learned that there were set working hours at Andalex. Amy

11 Piecoro testified that prior to September 26, 2008, she had

12 never been told that Kwan was arriving late, leaving early, or

13 taking long lunches. Later that day, Andrew Silverman fired

14 Kwan.

15

16 B.

17 According to Kwan, she was terminated about three weeks

18 after she had complained to Alex Silverman that she was being

19 discriminated against because of her gender. She alleges that

20 she was fired because of her recent complaint about

21 discrimination. Kwan testified that on September 3, 2008, she

22 asked Alex Silverman why she was being discriminated against

23 and treated differently from the men in the office with

24 respect to salary increases and bonuses. Alex allegedly told

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1 her that he and Andrew Silverman each speak with Allen

2 Silverman about their "own men” and Allen then decides the

3 increases and bonuses. About three weeks later, on September

4 26, 2008, Kwan was fired. Andalex claims that Andrew

Silverman made the decision to terminate Kwan.2 5 Alex

6 Silverman denies that the September 3 conversation ever

7 occurred.

8 Andalex has denied that it retaliated against the

9 plaintiff. Indeed it has denied that the alleged complaint of

10 gender discrimination ever occurred. Its explanations for the

11 plaintiff's firing have, however, evolved over time. Andalex

12 initially contended that its change in business focus to

13 international investments made the plaintiff's skill set

14 obsolete. Subsequently, it shifted to an explanation that the

15 plaintiff's poor performance and bad behavior were the reasons

16 for the termination.

2 Andalex has not been consistent in its explanation of

whether Andrew Silverman acted alone in deciding to terminate

the plaintiff. Andalex's statement to the Equal Employment

Opportunity Commission ("EEOC”) indicates that Andrew

Silverman and Steven Marks made the decision to terminate Kwan

together. At another point, the EEOC statement says that "it

was Mr. Marks['s] decision, approved by Andrew Silverman” to

terminate Kwan. Alex Silverman testified that Andrew

Silverman made the decision to terminate the plaintiff. Amy

Piecoro testified that the decision to terminate Kwan was made

by Andrew Silverman, Steven Marks, and William Kogan,

Andalex's General Counsel.

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1 In a letter dated November 19, 2008, Andalex's counsel

2 explained that both Kwan and Garber were terminated because

3 the business focus at Andalex had changed from domestic real

4 estate to international gaming and hospitality:

5 [Kwan's] skill set no longer matche[d] what Andalex

6 need[ed] from her position. . . . As Andalex's

7 business shifted from U.S.-based office properties

8 to Latin American hospitality and gaming interests,

9 Ms. Kwan's skill set became increasingly

10 obsolete. . . . Ms. Kwan has no experience in the

11 hospitality or gaming industry . . . which Andalex

12 deems necessary for the direction its business is

13 headed. Notably, only weeks ago, Andalex terminated

14 a senior portfolio manager who is male, [Burton

15 Garber,] because it similarly concluded that his

16 skill set was not a good match for the company going

17 forward.

18

19 The letter also claimed that Kwan was terminated because "she

20 repeatedly took long lunches, arrived to the office late, left

21 early, and generally made little effort to make herself

22 valuable to the company as its business focus changed.”

23 After Kwan filed a complaint with the Equal Employment

24 Opportunity Commission ("EEOC”), Andalex filed its Position

25 Statement (the "Position Statement”) on April 7, 2009. The

26 introduction to the Position Statement explained that over the

27 course of Kwan's employment, Andalex's "business changed

28 dramatically.” Andalex switched its focus from "the

29 acquisition, development and management of commercial, retail

30 and residential properties in the United States,” at the time

31 Kwan was hired, to "investments in Latin America and the

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1 Caribbean” and a "business plan abroad.” The Position

2 Statement argued that "the termination of Ms. Kwan's

3 employment [was] for reasons having nothing to do with her

4 gender or national origin. Rather, her skill set no longer

5 matched the needs of either Andalex or its foreign hospitality

6 and gaming division.” The introduction did not allege that

7 Kwan's poor performance or behavioral problems contributed to

8 the decision to terminate her.

9 The body of the Position Statement also focused almost

10 exclusively on Andalex's change in business focus. Andalex

11 represented that although it had attempted to "integrate Ms.

12 Kwan into its foreign hospitality and gaming division, as

13 domestic acquisitions came to a complete halt,” Kwan was not

14 suited to working on such transactions because she did not

15 speak Spanish and lacked experience in this new area of

16 business focus. Andalex represented that Kwan was unable to

17 adapt to the change in business focus and that both she and

18 Burton Garber had been terminated because of the change in

19 business focus:

20 While Ms. Kwan's performance in the context of the

21 domestic real estate aspect of the operation was

22 acceptable, she had failed and had been unable to

23 make the transition to the foreign hospitality and

24 gaming aspect of the business operation. In this

25 context, . . . her employment was terminated . . . .

26 During the same time frame, Burton Garber, a male,

27 who is not of Asian nationality, was also notified

28 of his termination based upon the disposition of

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1 Andalex's domestic real estate portfolio and the

2 growing focus on foreign business.

3

4 Andalex reiterated that "both Ms. Kwan's and Mr. Garber's

5 employments were severed as a consequence of the company's

6 shift from domestic real estate ownership and management to

7 the foreign hospitality and gaming business.” Andalex

8 repeated this position:

9 As noted above, the company's emphasis shifted from

10 real estate in the United States to hospitality and

11 gaming in Latin America and the Caribbean. Ms. Kwan

12 did not have experience in hospitality or gaming

13 acquisitions. She also did not speak Spanish. Her

14 skills simply no longer fit in with the business of

15 the company. . . . Ms. Kwan was never singled out

16 for disparate treatment. Ms. Kwan conveniently

17 fails to note that Mr. Garber's employment had been

18 terminated around the same time that her employment

19 had been terminated. His termination was for the

20 same basic reasons as was Ms. Kwan.

21

22 In the argument section of its Position Statement,

23 Andalex framed the dispute between the parties as "begin[ning]

24 with whether Ms. Kwan was qualified to perform in the

25 aftermath of the corporate changes in operations.” The

26 argument proceeded to tie Kwan and Garber together and claim

27 that the change in business focus was the reason for their

28 terminations:

29 Andalex asserts that Ms. Kwan did not have the

30 needed qualifications and abilities to transition

31 with the changes in corporate focus. Ms. Kwan and

32 Mr. Garber were both laid off at around the same

33 time for the same business reasons. Andalex has

34 presented a facially valid, independent and non35

discriminatory basis for the actions taken.

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1 Andalex's Position Statement also made brief reference to

2 Kwan's performance in response to her claims that her

3 performance was excellent, that she had always carried out her

4 responsibilities, and that she had never received written or

5 oral performance warnings. Andalex alleged there were

6 "several instances in which Ms. Kwan's work product contained

7 significant errors,” including "at least one case [where her

8 performance] adversely affected a transaction being negotiated

9 with a global financial institution.”

10 Andalex also alleged that Kwan's behavior contributed to

11 its decision to terminate her. Andalex alleged that on at

12 least two occasions Kwan had behaved inappropriately by taking

13 photographs of Steven Marks despite his repeated requests that

14 she stop. Andalex also claimed that "[t]oward the end of her

15 employment, Ms. Kwan was taking long lunches and leaving the

16 office early,” and referred to her alleged early departure for

17 a squash game.

18 Any fair reading of Andalex's Position Statement to the

19 EEOC indicates that Andalex claimed that Kwan was fired

20 primarily because its business focus had changed. Kwan was

21 therefore terminated at about the same time as Garber, a male

22 non-Asian, and Andalex could argue that the reason for both

23 terminations was the same. This rationale undercut any

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1 argument that Kwan was terminated because of discrimination

2 based on her gender or national origin.

3 Andalex's explanation that Kwan was terminated because of

4 a change in Andalex's business focus was undermined by Marks's

5 testimony at his deposition. Marks testified that Andalex's

6 business focus had already shifted from domestic real estate

7 to international hospitality and gaming by the time the

8 plaintiff began to work at Andalex. Marks testified that "at

9 the time [Kwan] came in, [Andalex was] looking to acquire

10 Curacao. . . . [and] some properties in Mexico. And [Andalex

11 was] in the process of trying to raise equity with . . . JP

12 Morgan to expand the hospitality and gaming business plan.”

13 Marks testified that although Burton Garber had been

14 terminated because of the shift in business focus, Kwan was

15 not terminated for that reason "[b]ecause she had been working

16 on casino-related projects soon after she started.” On the

17 other hand, Andrew Silverman testified that the plaintiff's

18 termination was the "[c]ulmination of her poor performance and

19 the fact that . . . our business model had begun to

20 change . . . .”

21 Andalex now alleges that Kwan's poor performance,

22 illustrated by three discrete incidents, was the chief reason

23 for her termination. Of the three incidents, only one was

24 mentioned in Andalex's Position Statement before the EEOC.

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1 The first instance, referred to briefly in Andalex's EEOC

2 Position Statement, involved Kwan's error in preparing a

3 financial model for possible equity funding. The project was

4 reassigned. Andalex also alleges that Kwan was late in

5 preparing a financial model for a casino acquisition in

6 Argentina. Additionally, Andalex claims that Kwan was late in

7 preparing a financial projection for a Mexican acquisition and

8 that the projection contained significant errors. Neither the

9 Argentina project, nor the Mexico project, was mentioned in

10 the EEOC Position Statement.

11 Andalex also alleges that Kwan's behavior contributed to

12 the decision to terminate her. Alex Silverman testified that

13 Kwan had conducted herself unprofessionally at several

14 business meetings. Marks also testified that Kwan did not

15 abide by the standard work hours, getting into work late,

16 leaving early, and taking long lunches.

17

18 C.

19 The evidence with respect to Kwan's COBRA claim is as

20 follows. After her termination, Kwan was entitled to receive

21 notification under COBRA regarding her right to continue to

22 receive health insurance benefits. As Director of Human

23 Resources, Amy Piecoro was responsible for notifying Andalex's

24 health insurance claims administrator, Paychex, Inc.

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1 ("Paychex”), about Kwan's termination, so that Paychex could

2 send Kwan notification of her right to continue her health

3 insurance benefits. Piecoro alleges that she completed and

4 sent the COBRA employee data sheet to Paychex on September 30,

5 2008, but Paychex claims that it never received the form and

6 therefore did not send the COBRA notification to Kwan.

7 Andalex claims that it discovered that Kwan had not

8 received her COBRA notification form only after her attorney

9 raised the issue in 2009. On October 12, 2009, more than a

10 year after her termination, the plaintiff received

11 notification of her COBRA rights from Paychex. Kwan then

12 allegedly called Paychex several times in October and November

13 2009 to determine the amount she owed for her first premium

14 check. The premium for the policy, stated in the notification

15 form from Paychex, was $1,942.81 per month. On December 1,

16 2009, Paychex sent a second COBRA notice to the plaintiff

17 offering Kwan participation in a different health plan,

18 Healthnet, for a monthly premium of $990.24. Kwan testified

19 that she could not afford the premium for coverage under the

20 Healthnet plan. When the plaintiff sought clarification about

21 the differences between the original and Healthnet plans,

22 Andalex's broker allegedly told her that all further

23 communications would "have to go through the attorneys.” Kwan

24 did not enroll in the Healthnet plan.

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1 The plaintiff remained unemployed and without health

2 insurance until she began new employment in Singapore in April

3 2010. Kwan testified that from the time her Andalex coverage

4 lapsed in October 2008 to when she secured new insurance in

5 2010, she and her husband incurred unreimbursed medical

6 expenses of "a few hundred dollars.” Kwan alleges that she

7 and her husband avoided and delayed seeking medical attention

8 during the period they were without health insurance,

9 including psychological counseling for the emotional distress

10 associated with Andalex's alleged discriminatory treatment and

11 her termination. Kwan was unable to locate any documents

12 evidencing her medical expenses or demonstrating that she had

13 delayed seeking medical attention for any ailments.

14

15 II.

16 The District Court granted Andalex's motion for summary

17 judgment and dismissed all of Kwan's claims.

18 The District Court dismissed the claims of discrimination

19 and retaliation under Title VII for failure to establish a

20 prima facie case under the framework set forth in McDonnell

21 Douglas Corp. v. Green, 411 U.S. 792 (1973). The District

22 Court went on to determine that even assuming the plaintiff

23 had met her prima facie burden, Andalex had offered legitimate

24 non-discriminatory reasons for her termination and the

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1 plaintiff had failed to produce sufficient evidence to

2 demonstrate that the reasons were a pretext for discrimination

3 or retaliation.

4 The District Court dismissed Kwan's claims under the

5 NYSHRL and NYCHRL for the same reasons it dismissed the Title

6 VII claims and dismissed Kwan's COBRA claim because the

7 plaintiff made no showing that she had been harmed by her lack

8 of COBRA coverage. In response to Andalex's motion for

9 summary judgment, Kwan also argued that her complaint stated a

10 claim for hostile work environment. The District Court

11 refused to consider Kwan's hostile work environment claim

12 because it was first raised in response to the motion for

13 summary judgment.

14 This appeal followed.

15

16 DISCUSSION

17 I. Hostile Work Environment and Retaliation Claims

18 We review de novo an award of summary judgment for the

19 claims under Title VII, the NYSHRL, and the NYCHRL. See

20 Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.

21 2010); Dawson v. Bumble & Bumble, 398 F.3d 211, 216-17 (2d

22 Cir. 2005). Summary judgment is appropriate where "there is

23 no genuine dispute as to any material fact and the movant is

24 entitled to judgment as a matter of law.” Fed. R. Civ. P.

-17-

1 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

2 A genuine dispute of material fact "exists for summary

3 judgment purposes where the evidence, viewed in the light most

4 favorable to the nonmoving party, is such that a reasonable

5 jury could decide in that party's favor.” Guilbert v.

6 Gardner, 480 F.3d 140, 145 (2d Cir. 2007) (citation omitted).

7 The substantive law governing the case will identify those

8 facts that are material, and "[o]nly disputes over facts that

9 might affect the outcome of the suit under the governing law

10 will properly preclude the entry of summary judgment.”

11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

12 Although summary judgment is proper where there is

13 "nothing in the record to support plaintiff's allegations

14 other than plaintiff's own contradictory and incomplete

15 testimony,” Jeffreys v. City of New York, 426 F.3d 549, 555

16 (2d Cir. 2005), there is a "need for caution about granting

17 summary judgment to an employer in a discrimination case where

18 . . . the merits turn on a dispute as to the employer's

19 intent,” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.

20 2008).

21

22 A. Hostile Work Environment Claims

23 Kwan's complaint does not assert a claim for hostile work

24 environment and Kwan did not raise the prospect of such a

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1 claim until her opposition to the motion for summary judgment.

2 The District Court held that because the plaintiff had never

3 asserted a claim of hostile work environment until her brief

4 in opposition to the motion for summary judgment, it would not

5 consider the claim. We agree with the District Court and will

6 not address the merits of that late-asserted claim. See

7 Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir.

8 2006); Syracuse Broad. Corp. v. Newhouse, 236 F.2d 522, 525

9 (2d Cir. 1956) (holding that district court was "justified” in

10 "brush[ing] aside” further argument not alleged in complaint

11 but raised for first time in opposition to summary judgment).

12 The dismissal of the hostile work environment claim is

13 therefore affirmed.

14

15 B. Retaliation Claims

16 To prevail on a retaliation claim, "the plaintiff need

17 not prove that her underlying complaint of discrimination had

18 merit,” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.

19 2012), but only that it was motivated by a "good faith,

20 reasonable belief that the underlying employment practice was

21 unlawful,” Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d

22 Cir. 1996) (citation and internal quotation marks omitted).

23 The good faith and reasonableness of Kwan's belief that she

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1 was subjected to discrimination are not at issue on this

2 appeal.

3 Federal and state law retaliation claims are reviewed

4 under the burden-shifting approach of McDonnell Douglas, 411

5 U.S. at 802-04. See Hicks v. Baines, 593 F.3d 159, 164 (2d

6 Cir. 2010); Dawson, 398 F.3d at 216-17; Reed, 95 F.3d at

1177.3 7

8 1.

9 Under the first step of the McDonnell Douglas framework,

10 the plaintiff must establish a prima facie case of retaliation

11 by showing 1) "participation in a protected activity”; 2) the

12 defendant's knowledge of the protected activity; 3) "an

13 adverse employment action”; and 4) "a causal connection

14 between the protected activity and the adverse employment

15 action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173

16 (2d Cir. 2005) (citation and internal quotation marks

17 omitted). The plaintiff's burden of proof as to this first

3 The plaintiff also brought a claim for retaliation

under the NYCHRL. It is unclear whether and to what extent

the McDonnell Douglas framework has been modified for claims

under the NYCHRL. See Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc., 715 F.3d 102, 110 n.8, 112 (2d Cir. 2013). It is

unnecessary to resolve that issue in this case because to the

extent that the defendant has failed to show it is entitled to

summary judgment under McDonnell Douglas, it would not be

entitled to summary judgment under the more expansive standard

of the NYCHRL. See Williams v. Regus Mgmt. Grp., LLC, 836 F.

Supp. 2d 159, 181 (S.D.N.Y. 2011).

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1 step "has been characterized as 'minimal' and 'de minimis.'”

2 Id. (citations omitted).

3 The District Court erred when it held that the plaintiff

4 failed to satisfy the knowledge and causation prongs of the

5 prima facie case.

6 With respect to the knowledge prong, the District Court

7 held that the plaintiff could not demonstrate Andalex's

8 knowledge of her protected activity because Kwan had provided

9 no evidence that Andrew Silverman had knowledge of Kwan's

10 September 3 conversation with Alex Silverman when Andrew made

11 the decision to terminate her. However, for purposes of a

12 prima facie case, a plaintiff may rely on "general corporate

13 knowledge” of her protected activity to establish the

knowledge prong of the prima facie case.4 14 Gordon v. N.Y.C.

15 Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) ("Neither [the

4 To the extent Andalex argues that Kwan must

demonstrate communication of Kwan's complaint from Alex

Silverman to Andrew Silverman, Andalex confuses the

"knowledge” and the causation prongs of the prima facie case

requirement. Kwan does not argue that general corporate

knowledge demonstrates causation, but rather argues that it

demonstrates knowledge. Furthermore, while Andalex is correct

that Kwan cannot satisfy the causation prong through mere

corporate knowledge, as discussed below, Kwan demonstrates

causation indirectly by the temporal proximity between her

complaint and her termination, and does not rely on "general

corporate knowledge” for the causation prong of the prima

facie case. It should, however, be noted that Andrew

Silverman testified that he consulted with his brother before

terminating the plaintiff and Alex Silverman testified that he

and Andrew had discussed terminating the plaintiff.

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1 Second Circuit] nor any other circuit has ever held that, to

2 satisfy the knowledge requirement, anything more is necessary

3 than general corporate knowledge that the plaintiff has

4 engaged in a protected activity.”) (citations omitted). Here,

5 the plaintiff made her September 3 complaint to Alex

6 Silverman, an officer of the corporation. This complaint was

7 sufficient to impute to Andalex general corporate knowledge of

8 the plaintiff's protected activity. See Reed, 95 F.3d at 1178

9 (holding that a plaintiff's complaint to an officer of the

10 company communicated her concerns to the company as a whole

11 for purposes of the knowledge prong of the prima facie case);

12 see also Summa v. Hofstra Univ., 708 F.3d 115, 125-26 (2d Cir.

13 2013). Therefore, Kwan satisfied the knowledge prong of the

14 prima facie case.

15 This case is a good illustration of why corporate

16 knowledge is sufficient for purposes of a prima facie case of

17 retaliation. If that were not true, a simple denial by a

18 corporate officer that the officer ever communicated the

19 plaintiff's complaint, no matter how reasonable the inference

20 of communication, would prevent the plaintiff from satisfying

21 her prima facie case, despite the fact that the prima facie

22 case requires only a de minimis showing.

23 The District Court also held that Kwan had not satisfied

24 the causation prong because she had adduced no facts plausibly

-22-

1 suggesting that the September 3 conversation with Alex

2 Silverman was causally related to her termination by Andrew

3 Silverman. However, even without direct evidence of

4 causation, "a plaintiff can indirectly establish a causal

5 connection to support a . . . retaliation claim by showing

6 that the protected activity was closely followed in time by

7 the adverse [employment] action.” Gorman-Bakos v. Cornell

8 Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d

9 Cir. 2001) (citation and internal quotation marks omitted);

10 see also Summa, 708 F.3d at 127-128.

11 The Supreme Court recently held that "Title VII

12 retaliation claims must be proved according to traditional

13 principles of but-for causation,” which "requires proof that

14 the unlawful retaliation would not have occurred in the

15 absence of the alleged wrongful action or actions of the

16 employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.

17 2517, 2533 (2013). However, the but-for causation standard

18 does not alter the plaintiff's ability to demonstrate

19 causation at the prima facie stage on summary judgment or at

20 trial indirectly through temporal proximity.

21 The three-week period from Kwan's complaint to her

22 termination is sufficiently short to make a prima facie

23 showing of causation indirectly through temporal proximity.

24 See Gorzynski, 596 F.3d at 110 ("Though this Court has not

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1 drawn a bright line defining, for the purposes of a prima

2 facie case, the outer limits beyond which a temporal

3 relationship is too attenuated to establish causation, we have

4 previously held that five months is not too long to find the

5 causal relationship.”) (citations omitted); Gorman-Bakos, 252

6 F.3d at 554-55. Therefore, Kwan presented a prima facie case

7 for her retaliation claims.

8 Once the plaintiff has established a prima facie showing

9 of retaliation, the burden shifts to the employer to

10 articulate some legitimate, non-retaliatory reason for the

11 employment action. United States v. Brennan, 650 F.3d 65, 93

12 (2d Cir. 2011). In this case, the defendant has proffered the

13 plaintiff's poor work performance, bad behavior, and Andalex's

14 change in business focus as the legitimate non-retaliatory

15 reasons for the plaintiff's termination.

16

17 2.

18 Andalex's inconsistent and contradictory explanations for

19 the plaintiff's termination, combined with the close temporal

20 proximity between the September 3 conversation and Kwan's

21 termination, are sufficient to create a genuine dispute of

22 material fact as to whether Kwan's September 3 complaint of

23 gender discrimination was a but-for cause of the plaintiff's

24 termination.

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1 Under the McDonnell Douglas framework, after the

2 defendant has articulated a non-retaliatory reason for the

3 employment action, the presumption of retaliation arising from

4 the establishment of the prima facie case drops from the

5 picture. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d

6 Cir. 2000). The plaintiff must then come forward with

7 evidence that the defendant's proffered, non-retaliatory

8 reason is a mere pretext for retaliation. Id.

9 The Supreme Court recently held that a plaintiff alleging

10 retaliation in violation of Title VII must show that

11 retaliation was a "but-for” cause of the adverse action, and

12 not simply a "substantial” or "motivating” factor in the

13 employer's decision. Nassar, 133 S. Ct. at 2526, 2533.

14 However, "but-for” causation does not require proof that

15 retaliation was the only cause of the employer's action, but

16 only that the adverse action would not have occurred in the

absence of the retaliatory motive.5 17

5 Prior to the Supreme Court's decision in Nassar, in

order to demonstrate pretext, a plaintiff was only required to

demonstrate that a retaliatory motive was "a substantial or

motivating factor behind the adverse action[,]” Raniola v.

Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (internal quotation

marks and citations omitted), rather than a "but-for” cause of

the adverse action. In Nassar, the Supreme Court held that

"Title VII retaliation claims must be proved according to

traditional principles of but-for causation,” and "[t]his

requires proof that the unlawful retaliation would not have

occurred in the absence of the alleged wrongful action or

-25-

1 A plaintiff may prove that retaliation was a but-for

2 cause of an adverse employment action by demonstrating

3 weaknesses, implausibilities, inconsistencies, or

4 contradictions in the employer's proffered legitimate, non5

retaliatory reasons for its action. From such discrepancies,

6 a reasonable juror could conclude that the explanations were a

7 pretext for a prohibited reason. See, e.g., Byrnie v. Town of

actions of the employer.” Nassar, 133 S. Ct. at 2533.

However, a plaintiff's injury can have multiple "but-for”

causes, each one of which may be sufficient to support

liability. See Fowler V. Harper et al., 4 Harper, James and

Gray on Torts § 20.2, at 100-101 (3d ed. 2007) ("Probably it

cannot be said of any event that it has a single causal

antecedent . . . .”) (collecting cases); W. Page Keeton et

al., Prosser and Keeton on Torts § 41, at 264-66 (5th ed.

1984). Requiring proof that a prohibited consideration was a

"but-for” cause of an adverse action does not equate to a

burden to show that such consideration was the "sole” cause.

See, e.g., Fagan v. U.S. Carpet Installation, Inc., 770 F.

Supp. 2d 490, 496 (E.D.N.Y. 2011) (explaining that under the

Age Discrimination in Employment Act "[t]he condition that a

plaintiff's age must be the 'but for' cause of the adverse

employment action is not equivalent to a requirement that age

was the employer's only consideration, but rather that the

adverse employment actions would not have occurred without

it.”) (citation omitted).

In this case, the parties have put forward several

alleged causes of the plaintiff's termination: retaliation,

unsuitability of skills, poor performance, and inappropriate

behavior. The determination of whether retaliation was a

"but-for” cause, rather than just a motivating factor, is

particularly poorly suited to disposition by summary judgment,

because it requires weighing of the disputed facts, rather

than a determination that there is no genuine dispute as to

any material fact. A jury should eventually determine whether

the plaintiff has proved by a preponderance of the evidence

that she did in fact complain about discrimination and that

she would not have been terminated if she had not complained

about discrimination.

-26-

1 Cromwell, Bd. of Educ., 243 F.3d 93, 105-07 (2d Cir. 2001)

2 (age and gender discrimination); Carlton v. Mystic Transp.,

3 Inc., 202 F.3d 129, 137 (2d Cir. 2000) (age discrimination);

4 Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144,

5 156-57 (2d Cir. 1998) (disability discrimination), superseded

6 by statute on other grounds as stated in Hilton v. Wright, 673

7 F.3d 120, 128 (2d Cir. 2012); EEOC v. Ethan Allen, Inc., 44

8 F.3d 116, 120 (2d Cir. 1994) (age discrimination) (collecting

9 cases).

10 In this case, Andalex offered shifting and somewhat

11 inconsistent explanations for Kwan's termination. Andalex

12 claimed throughout its Position Statement to the EEOC that

13 Kwan and Burton Garber were both terminated largely because of

14 Andalex's change in business focus from domestic real estate

15 to international gaming and hospitality. This was a

16 convenient explanation because it undercut any claim of gender

17 or national origin discrimination. However, Marks, Andalex's

18 CFO and Kwan's direct supervisor, later testified that Kwan,

19 unlike Garber, was not terminated because of a shift in

20 company focus. Marks's testimony directly contradicts

21 Andalex's main representation to the EEOC. Moreover, while

22 Kwan's poor performance on the Argentina and Mexico projects

23 became critical parts of Andalex's argument that Kwan had

24 performed poorly, those projects were never even mentioned to

-27-

1 the EEOC as reasons for Kwan's termination. "From such

2 discrepancies a reasonable juror could infer that the

3 explanations given by [Andalex] were pretextual.” Ethan

Allen, 44 F.3d at 120; see also Byrnie, 243 F.3d at 106.6 4

5 Kwan's evidence of Andalex's inconsistent explanations

6 for her termination and the very close temporal proximity

7 between her protected conduct and her termination are

8 sufficient to create a triable issue of fact with regard to

9 whether the September 3 complaint was a but-for cause of her

10 termination. Temporal proximity alone is insufficient to

11 defeat summary judgment at the pretext stage. See El Sayed v.

12 Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per

13 curiam). However, a plaintiff may rely on evidence comprising

14 her prima facie case, including temporal proximity, together

15 with other evidence such as inconsistent employer

16 explanations, to defeat summary judgment at that stage. See

6 The District Court addressed the inconsistencies in

the defendant's stated reasons for the plaintiff's

termination. The District Court noted Marks's denial that the

shift in Andalex's business was a basis for the plaintiff's

termination. The District Court found that Marks's statement

was not inconsistent with Andrew Silverman's testimony that

while the change in business was a factor that influenced his

decision, the plaintiff's termination was due primarily to

work performance issues. The District Court found these to be

different but consistent explanations. This ignores that the

thrust of the defendant's position before the EEOC was that

the plaintiff was terminated because of a shift in the

defendant's business, a rationale that was disowned by Marks,

the plaintiff's direct supervisor.

-28-

1 Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001) ("Under

2 some circumstances, retaliatory intent may . . . be shown, in

3 conjunction with the plaintiff's prima facie case, by

4 sufficient proof to rebut the employer's proffered reason for

5 the termination.”); James v. N.Y. Racing Ass'n, 233 F.3d 149,

6 156-57 (2d Cir. 2000) ("[E]vidence satisfying the minimal

7 McDonnell Douglas prima facie case, coupled with evidence of

8 falsity of the employer's explanation, may or may not be

9 sufficient to sustain a finding of [retaliation]; . . . the

10 way to tell whether a plaintiff's case is sufficient to

11 sustain a verdict is to analyze the particular evidence to

12 determine whether it reasonably supports an inference of the

13 facts plaintiff must prove”); Quinn v. Green Tree Credit

14 Corp., 159 F.3d 759, 770 (2d Cir. 1998) (holding that a strong

15 temporal connection between the plaintiff's complaint and

16 other circumstantial evidence is sufficient to raise an issue

17 of fact with respect to pretext), abrogated in part on other

18 grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101

19 (2002).

20 Based on the discrepancies between the EEOC statement and

21 subsequent testimony, a reasonable juror could infer that the

22 explanation given by the defendant was pretextual, and that,

23 coupled with the temporal proximity between the complaint and

24 the termination, the September 3 complaint was a but-for cause

-29-

1 of Kwan's termination. Viewing the evidence in the light most

2 favorable to the plaintiff, as required on a motion for

3 summary judgment, there is sufficient evidence to require

4 denial of the summary judgment motion on the claims for

retaliation.7 5

6

7 II. COBRA Claim

8 The plaintiff's final claim is based on Andalex's alleged

9 failure to provide her with timely notice of her health

10 insurance continuation coverage rights as required under

11 COBRA. The District Court dismissed Kwan's COBRA claim

12 because there was no evidence that the plaintiff suffered harm

13 from her lack of coverage. Because Kwan has made no showing

14 of bad faith by Andalex or prejudice resulting from the lack

15 of notice, the District Court did not abuse its discretion in

16 dismissing Kwan's claim for statutory penalties.

17 We review the District Court's determination that a

18 plaintiff is not entitled to statutory penalties under 29

19 U.S.C. § 1132(c)(1) for abuse of discretion. See Demery v.

20 Extebank Deferred Comp. Plan (B), 216 F.3d 283, 290 (2d Cir.

21 2000). COBRA permits a qualifying employee to continue to

7 Because the plaintiff's claims survive under the

Nassar "but-for” standard, we do not decide whether the NYSHRL

claim is affected by Nassar, which by its terms dealt only

with retaliation in violation of Title VII.

-30-

1 receive health benefits at the group rate even after the

2 termination of her employment. 29 U.S.C. §§ 1161(a), 1163(2).

3 The statute specifies that "the employer . . . must notify the

4 [health plan] administrator . . . within 30 days” of the

5 employee's termination, id. § 1166(a)(2), and the

6 administrator must then notify the employee of her rights to

7 continuing coverage within 14 days, id. §§ 1166(a)(4), (c).

8 Under ERISA, of which COBRA is a part, a plan administrator

9 who fails to meet the COBRA notice requirements "may in the

10 court's discretion be personally liable to such participant or

beneficiary in the amount of up to [$110]8 11 a day from the date

12 of such failure or refusal . . . .” id. § 1132(c)(1); see

13 also Deckard v. Interstate Bakeries Corp. (In re Interstate

Bakeries Corp.), 704 F.3d 528, 534-37 (8th Cir. 2013).9 14

15 In assessing a claim for statutory penalties under ERISA,

16 a district court should consider various factors, including

17 "bad faith or intentional conduct on the part of the

8 The statute provides for a civil penalty of up to $100

per day; however that amount has been increased to $110 per

day. See Adjusted Civil Penalty Under Section 502(c)(1), 29

C.F.R. § 2575.502c-1; De Nicola v. Adelphi Acad., No. 05 Civ.

4231, 2006 WL 2844384, at *7 (E.D.N.Y. Sept. 29, 2006).

9 We note that the parties have not raised the issue of

whether Kwan is barred from recovery against Andalex because

statutory penalties are only available against the plan

administrator. See 29 U.S.C. § 1132(c)(1). We therefore

decline to address that issue.

-31-

1 administrator, the length of the delay, the number of requests

2 made and documents withheld, and the existence of any

3 prejudice to the participant or beneficiary.” Devlin v.

4 Empire Blue Cross & Blue Shield, 274 F.3d 76, 90 (2d Cir.

5 2001) (quoting Pagovich v. Moskowitz, 865 F. Supp. 130, 137

6 (S.D.N.Y. 1994) (collecting cases)) (internal quotation marks

7 omitted); see also In re Interstate Bakeries Corp., 704 F.3d

8 at 534; De Nicola, 2006 WL 2844384, at *7-10; Chambers v.

9 European Am. Bank & Trust Co., 601 F. Supp. 630, 638-39

10 (E.D.N.Y. 1985) (collecting cases) ("The weight of authority

11 indicates that penalties are not imposed when a plaintiff has

12 failed to demonstrate that his rights were harmed or otherwise

13 prejudiced by the delay in his receipt of the information.”).

14 Applying these factors, we conclude that the District

15 Court did not abuse its discretion when it held that the

16 plaintiff was not entitled to statutory penalties. Kwan

17 presented no evidence of bad faith or intentional misconduct

18 by Paychex or Andalex. See Devlin, 274 F.3d at 90; In re

19 Interstate Bakeries Corp., 704 F.3d at 537.

20 Kwan has also failed to demonstrate prejudice resulting

21 from the lack of coverage. By the plaintiff's own account,

22 she incurred medical bills of only a few hundred dollars. Had

23 she elected to receive coverage under COBRA, it is undisputed

24 that she would have had to pay premiums in the range of

-32-

1 hundreds or thousands of dollars each month. The plaintiff

2 therefore suffered no monetary loss from her failure to obtain

3 insurance coverage until she obtained new employment. See

4 Partridge v. HIP of Greater N.Y., No. 97 Civ. 0453, 2000 WL

5 827299, at *6 (S.D.N.Y. June 26, 2000), aff'd, No. 00-7920,

6 2001 WL 950682 (2d Cir. Aug. 14, 2001) (Summary Order). To

7 the extent Kwan alleges that she would have sought healthcare

8 had she had health insurance, her claim fails because she

9 presented no evidence to support this allegation. See In re

10 Interstate Bakeries Corp., 704 F.3d at 536. Therefore, the

11 District Court acted well within its discretion when it

12 dismissed the claim for statutory penalties because there was

no showing of bad faith and Kwan suffered no harm.10 13

14 CONCLUSION

15 We have considered all of the arguments of the parties.

16 To the extent not specifically addressed above, they are

10 Kwan was also not entitled to actual damages. The

only damages that she could recover are based on the several

hundred dollars of medical bills she allegedly incurred.

However, "[t]o be eligible to collect the [unreimbursed

medical bills], the plaintiff would need to pay the COBRA

premium payments.” Rinaldo v. Grand Union Co., No. 89 Civ.

3850, 1995 WL 116418, at *2 (E.D.N.Y. Mar. 8, 1995) (citing 29

U.S.C. § 1162(2)(C)). "Where, as here, [the] plaintiff is in

a better position not having exercised [her] rights under

COBRA, there can be no actual damages.” Id.; see also Soliman

v. Shark Inc., No. 00 Civ. 9049, 2004 WL 1672458, at *5

(S.D.N.Y. July 27, 2004).

-33-

1 either moot or without merit. For the reasons explained

2 above, we AFFIRM the judgment of the District Court dismissing

3 all claims, except we VACATE the judgment of the District

4 Court dismissing the retaliation claims. The case is REMANDED

5 for further proceedings consistent with this opinion.

BARRINGTON 1 D. PARKER, Circuit Judge, concurring in part and dissenting

2 in part:

3 I concur in the majority's affirmance of the dismissal of

4 Kwan's gender and national origin discrimination, hostile work

5 environment, and COBRA claims. I would affirm the dismissal of

6 her federal retaliation claim as well. District Judge Katherine B.

7 Forrest concluded after a thorough and careful review that "no

8 rational juror could find for the plaintiff in this case after comparing

9 the overwhelming facts in the record supportive of legitimate

10 business reasons for plaintiff's termination with what may only be

11 characterized as cobbled together conduct allegedly supportive

12 of . . . retaliation.” In my view, she was correct.

13 I will assume for the moment that Kwan established a prima

14 facie case of retaliation, and that Andalex proffered legitimate,

15 performance‐based reasons for her termination. As the majority

16 notes, at that point, Kwan was obligated to come forward with

17 sufficient evidence on the basis of which a reasonable jury could find

18 that Andalex's performance‐based reasons were pretextual. See

19 Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). In other

20 words, evidence that would permit a reasonable jury to find that she

21 engaged in a protected activity, and that the activity, as opposed to

22 the reasons proffered by Andalex, led to her termination. The bar is

23 even higher in the wake of Nassar, as Kwan must now adduce facts

24 sufficient to allow a reasonable trier of fact to find that retaliation

25 was the "but for” cause of her termination. Univ. Of Tx. Sw. Med.

1

Ctr. v. Nassar, 133 S. 1 Ct. 2514, 2533 (2013).1 Kwan failed to carry this

2 burden.

3 The majority opinion hangs by a slender factual thread – that

4 Kwan purports to have complained to Alex Silverman that she was

5 being discriminated against, that she was fired three weeks later,

6 and that her employer gave multiple reasons for her termination.

7 Because more than one reason was offered, the majority concludes

8 that Andalex's reasons were necessarily pretextual. The problem

9 with this analysis is that it obscures the failure of proof on Kwan's

10 part that the myriad performance‐based reasons for her discharge

11 were "mere pretext for actual [retaliation],” Weinstock, 224 F.3d at 42,

12 and that this supposed retaliation was the "but for” cause of her

13 termination, Nassar, 133 S. Ct. at 2533.

14 Even accepting, for the purposes of argument, that Kwan has

15 established that Andalex offered differing and thus apparently

16 pretextual explanations for her termination, summary judgment

17 would still be appropriate. As we explained in Schnabel v. Abramson,

18 even where a plaintiff has demonstrated pretext, rather than simply

19 applying a per se rule precluding summary judgment for the

20 defendant, we must instead employ a "case‐by‐case approach” and

1 The "but for” causation standard would apply to Kwan's Title VII and NYSHRL

claims, but not to her retaliation claims under the NYCHRL. See Mihalik v. Credit Agricole

Cheuvreux N. Am., Inc., 715 F.3d 102, 116 (2d Cir. 2013) (explaining that under the NYCHRL

"summary judgment is appropriate only if the plaintiff cannot show that retailation played

any part in the employer's decision.”). I decline to address Kwan's claims under the

NYCHRL, because in the absence of a viable federal claim, I would decline to exercise

supplemental jurisdiction over any remaining state or city law claims. 28 U.S.C. § 1367.

2

1 "examin[e] the entire record to determine whether the plaintiff could

2 satisfy h[er] 'ultimate burden of persuading the trier of fact that the

3 defendant intentionally discriminated against the plaintiff.'” 232

4 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing

5 Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks

6 omitted)). While Schnabel dealt with an age discrimination claim,

7 this approach applies to retaliation claims as well. In conducting

8 this "case‐by‐case” analysis, "[t]he relevant factors . . . 'include the

9 strength of the plaintiff's prima facie case, the probative value of the

10 proof that the employer's explanation is false, and any other

11 evidence that supports [or undermines] the employer's case.'” James

12 v. N.Y. Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (third alteration

13 in original) (quoting Reeves, 530 U.S. at 148‐49).

14 First, Kwan's prima facie case was particularly weak. To

15 establish a prima facie case of retaliation under Title VII, she was

16 obligated to demonstrate that: (1) she was engaged in an activity

17 protected under Title VII; (2) her employer was aware of her

18 participation in the protected activity; (3) the employer took adverse

19 action against her; and (4) a causal connection existed between the

20 protected activity and the adverse action. See Gordon v. New York

21 City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (quoting Cosgrove v.

22 Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir.1993)).

23 Kwan addressed the knowledge and causation prongs in the

24 most minimal way possible, relying exclusively on the legal fiction

25 of general corporate knowledge and on a temporal proximity

26 between her complaint and her discharge. Notably, she failed to

3

1 even allege, much less proffer evidence after taking extensive

2 discovery, that the complaint she purportedly made to Alex

3 Silverman was actually communicated to or known by the

4 executives who terminated her, Andrew Silverman and Gregory

5 Marks. This critical factual omission is telling.

6 Moreover, the probative value of her proof of pretext was

7 minimal. As discussed below, Andalex consistently relied on the

8 same facts and events justifying Kwan's termination at each stage of

9 the proceedings. There is no evidence that Andalex shifted its

10 position for strategic reasons because, for example, new evidence

11 undermined a prior asserted justification, see Carlton v. Mystic

12 Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000); EEOC v. Ethan Allen, 44

13 F.3d 116, 120 (2d Cir. 1994). To the extent its position has shifted at

14 all (and I would find, for the reasons discussed below, that it has

15 not), that shift merely reflected a change in the description it applied

16 to a consistent set of facts.

17 In any event, Andalex presented ample evidence of legitimate,

18 non‐retaliatory reasons for its termination of Kwan. Andalex

19 established that, consistent with their shift in business strategy,

20 another employee who held a similar position, but also lacked the

21 skills and experiences Andalex was seeking, was terminated three

22 days before Kwan. In addition, Andalex demonstrated that Kwan

23 was replaced by a woman with the Spanish language skills that

24 Kwan lacked.

4

1 In addition, Andalex documented a host of performance based

2 reasons why Kwan was fired. For example, in December 2007, in

3 connection with a casino acquisition project in Argentina, Marks

4 asked Kwan to prepare a financial model over the weekend so that it

5 could be checked Monday morning in preparation for a business trip

6 that evening. Kwan avoided working over the weekend and

7 claimed that she needed help translating the Spanish‐language

8 documents. Although another employee, fluent in Spanish, offered

9 to help Kwan complete the work on Sunday, she declined. Kwan

10 began work on the model on Monday morning, and was unable to

11 complete the assignment in a timely fashion, forcing the executives

12 to travel without the model.

13 In October 2007, Kwan was asked to update a financial model

14 for a pending deal by adding and removing certain projected

15 acquisitions. Marks found numerous errors in Kwan's work product

16 and was forced to assign the project to a more junior analyst to be

17 completed properly. Kwan does not deny that the incident

18 occurred, but only denies that she was ever told of this incident.

19 In September 2008, Marks asked Kwan to prepare a financial

20 projection for a deal involving the acquisition of a chain of Mexican

21 casinos. Kwan made errors in the model that led to grossly

22 overstated losses. After a potential investor noticed the mistake and

23 contacted Andrew Silverman to ask why Andalex was

24 recommending an investment that was projected to have a

25 significant loss, Marks and another employee were forced to redo

26 Kwan's work and to suffer the obvious embarrassment to the

5

1 company's reputation. In response, Kwan denies that she was ever

2 told she had made "errors,” and argues that Marks and the other

3 employee merely were "simplifying” the formulae, rather than

4 redoing her work.

5 In his deposition, Andrew Silverman noted that he received

6 feedback from other employees that Kwan had conducted herself in

7 an unprofessional manner during several business meetings,

8 including inappropriately taking photos of Marks on two occasions.

9 Further, at the end of her employment Kwan was taking long

10 lunches and leaving the office early even when work remained

11 unfinished. As a result, Marks required Kwan to let him know

12 before she left so that he could make sure there was no additional

13 work that needed to be completed, but she regularly failed to do so.

14 On the day before her termination, Marks observed Kwan leaving

15 the office around 5:00 p.m even though she had a looming deadline.

16 Kwan denies taking long lunches, and provides a different

17 explanation for leaving early the day before her termination and

18 avers that she was a competent employee. However, her subjective

19 disagreement with her employer's assessment of her performance is

20 not sufficient to demonstrate retaliatory intent and defeat summary

21 judgement. Ricks v. Conde Nast Publ'ns, 6 F. App'x 74, 78 (2d Cir.

22 2001) (summary order); see also Stern v. Trustees of Columbia Univ. in

23 City of New York, 131 F.3d 305, 315 (2d Cir. 1997) ("'This court does

24 not sit as a super‐personnel department that reexamines an entity's

25 business decisions.'” (quoting Dale v. Chicago Tribune Co., 797 F.2d

26 458, 464 (7th Cir. 1986)). In any event, in light of this abundance of

6

1 largely unrefuted evidence of poor performance, no reasonable trier

2 of fact could conclude that retaliation was the "but for "reason for

3 Kwan's termination.

4 But we need not even reach the foregoing analysis, however,

5 as I would find that Kwan has neither demonstrated that Andalex

6 shifted positions, nor, as a result, pretext. The majority finds that

7 she has done so by characterizing Andalex's position as shifting

8 between its Position Statement in the Equal Employment

9 Opportunity Commission ("EEOC”) proceedings and this lawsuit.

10 As our precedent recognizes, however, it is not uncommon for an

11 employer to have multiple reasons for terminating an employee, and

12 we have held that where the employer offers "variations . . . on the

13 same theme rather than separate inconsistent justifications,” there is

14 not sufficient evidence of pretext to preclude the entry of summary

15 judgment. Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir.

16 2001); see also Timothy v. Our Lady of Mercy Med. Ctr., 233 F. App'x 17,

17 20 (2d Cir. 2007).

18 In Roge, after the employer cited, among other things, the lack

19 of work for the plaintiff‐employee and its own business

20 restructuring as reasons for the employee's termination, the

21 employee argued that those two reasons were inconsistent and thus

22 pretextual. 257 F.3d at 169‐70. We disagreed, finding that the

23 business restructuring was motivated by the lack of work, and thus

24 that these two explanations were "variations . . . on the same

25 theme.” Id. at 170. Similarly, in Timothy, we found that the

26 employer's various and shifting justifications for an employee's

7

1 repeated reassignments were not pretextual because they "share[d] a

2 consistent theme of a[n employer] facing the double bind of a severe

3 labor shortage and desperate financial straits that is trying to deal

4 with this terrible situation through reorganization and

5 reassignments.” 233 F. App'x at 20.

6 Rather than "inconsistent explanations,” as the majority

7 asserts, Andalex has offered complementary justifications for

8 Kwan's discharge: a shift in the company's business focus as well as

9 her poor performance – that are part of the same theme and which

10 support her termination. These rationales, and the key facts

11 supporting them, are consistently reflected in Andalex's

12 submissions.

13 In a pre‐litigation letter, Andalex relied not only on the fact

14 that its "business shifted,” but also on Kwan's poor performance to

15 justify her termination. Andalex explained that as a result of the

16 shift in business focus Kwan's "skill set became increasingly

17 obsolete,” and that "[Kwan] repeatedly took long lunches, arrived to

18 the office late, left early, and generally made little effort to make

19 herself valuable to the company as its business focus changed.”

20 Similarly, in Andalex's Position Statement before the EEOC, it

21 explained that its "business changed dramatically,” that "[Kwan's]

22 skill set no longer matched the needs” of the company, and that "she

23 had failed and had been unable to make the transition to the foreign

24 hospitality and gaming aspect of the business operation,” as

25 evidenced by Andrew Silverman's recollection of "several instances

8

in 1 which [her] work product contained significant errors, which in at

2 least one case adversely affected a transaction being negotiated with

3 a global financial institution.” The EEOC Position Statement also

4 recounted the instances where Kwan had inappropriately

5 photographed Marks during business meetings, as well as her "long

6 lunches” and penchant for "leaving the office early” in violation of

7 Marks' requirement that he first check in with him, including the

8 specific instance on the day before she was terminated.

9 The majority's narrow focus on a single answer Marks gave in

10 his deposition, disputing that Kwan was fired due to the business

11 shift, ignores the other facts that Marks relied upon. Like both

12 Andalex's pre‐litigation letter and EEOC Position Statement,

13 Marks's deposition testimony described a number of specific

14 projects in which Kwan had performed poorly, both in the quality of

15 her work, and her unwillingness or inability to complete her work in

16 a timely fashion. The fact that in one answer Marks characterized

17 these events as strictly performance problems does not change the

18 reality that Andalex and its executives have advanced the same facts

19 justifying Kwan's termination throughout these proceedings.

20 In its summary judgment brief, Andalex also relied upon these

21 same facts to support its argument that the combination of the

22 company's shifting business focus and Kwan's poor performance

23 justified her termination. In the brief, Andalex explained that the

24 decision to terminate Kwan was "a culmination of ongoing issues

25 that were brought to [its] attention by a number of people regarding

26 the quality and accuracy of Kwan's work product, the level of her

9

1 performance, and her attitude.” The brief reviewed the instances

2 where Kwan's work was deficient or late to the detriment of the

3 company, and where she resisted working the hours necessary to

4 finish her work before deadlines, or left the office early despite

5 pressing responsibilities.

6 Further, there is no evidence that Andalex ever altered its

7 rationale because new evidence undermined a previously asserted

8 justification for her discharge, see Carlton, 202 F.3d at 137, and Ethan

9 Allen, 44 F.3d at 120, nor does the record establish that the allegedly

10 shifting reasons Andalex has asserted are in fact contradictory.

11 Rather, the shift in business focus and Kwan's poor performance are

12 complementary — indeed the shift in focus may in fact be a cause of

13 at least some of Kwan's performance problems. Therefore, to the

14 extent one or the other is more heavily emphasized at times, that

15 does not mean that they are not part of a consistent theme.

16 Consequently, Kwan failed to demonstrate that Andalex shifted its

17 positions, let alone that such a shift rendered its proffered, legitimate

18 reasons for her termination pretextual.

19 The only remaining evidence of pretext offered by Kwan is the

20 temporal proximity of her alleged complaint and her termination.

21 We have, however, repeatedly held that temporal proximity alone is

22 insufficient as a matter of law to defeat summary judgment. See, e.g.,

23 El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010)

24 (affirming district court's grant of summary judgment to defendant

25 where plaintiff relied only upon temporal proximity and made no

26 showing of pretext). Whatever modest probative value temporal

10

proximity might have 1 in this case is washed away by the facts that

2 Plaintiff did not offer any evidence to suggest that the decision3

makers who fired her knew about the complaints she allegedly

4 made and that Plaintiff did not produce any evidence to undermine

5 Andalex's position that her performance was demonstrably poor

6 and incompatible with its shift in business focus.

7

8 CONCLUSION

I would affirm the judgment of the district court in its entirety.

11

We affirm the judgment of the District Court in all respects, except we vacate the judgment dismissing the retaliation claims and remand as to those claims for further proceedings.