Kwan v. The Andalex Group LLC, No. 12-2493 (2d Cir. 2013)
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Plaintiff filed suit against her former employer, Andalex, alleging claims of discrimination, retaliation, and hostile work environment under federal and state law, as well as claims that Andalex failed to notify her of her right to continuing health care coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 29 U.S.C. 1166 et seq. The district court granted summary judgment in favor of Andalex and dismissed her claims. The court affirmed the district court's judgment except with respect to plaintiff's retaliation claims. Based on the discrepancies between the EEOC statement and subsequent testimony, a reasonable juror could infer that the explanation given by Andalex was pretextual, and that, coupled with the temporal proximity between the complaint and the termination, the complaint at issue was a but-for cause of defendant's termination. Accordingly, there was sufficient evidence to require denial of the summary judgment motion on the retaliation claims.
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12-2493-cv Kwan v. The Andalex Group LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________ August Term, 2012 Argued: March 7, 2013 Decided: December 16, 2013 Docket No. 12-2493-cv ____________________________________ ZANN KWAN, Plaintiff-Appellant, v. THE ANDALEX GROUP LLC, Defendant-Appellee. ___________________________________ Before: B.D. PARKER AND LOHIER, Circuit Judges, and KOELTL, District Judge.* The plaintiff, Zann Kwan, appeals from the judgment of 29 the United States District Court for the Southern District of 30 New York dismissing her complaint. 31 (Katherine B. Forrest, Judge) granted summary judgment 32 dismissing the plaintiff s claims for discrimination, 33 retaliation, and hostile work environment, in violation of 34 federal and state discrimination laws, and failure to notify The District Court * The Honorable John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation. -1- 1 the plaintiff of her rights under the Consolidated Omnibus 2 Budget Reconciliation Act of 1985, in violation of the 3 Employee Retirement Income Security Act of 1974. 4 We affirm the judgment of the District Court in all 5 respects, except we vacate the judgment dismissing the 6 retaliation claims and remand as to those claims for further 7 proceedings. 8 9 Judge Parker concurs in part and dissents in part in a separate opinion. 10 ______________ 11 12 13 14 15 16 17 EDWARD F. WESTFIELD, Edward F. Westfield, P.C., for PlaintiffAppellant Zann Kwann. 18 19 20 John G. Koeltl, District Judge: 21 Andalex Group LLC ( Andalex ). 22 the United States District Court for the Southern District of 23 New York dismissing her complaint. 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 A. MICHAEL WEBER AND JOSEPH E. FIELD, Littler Mendelson, P.C., for Defendant-Appellee The Andalex Group LLC. ______________ The plaintiff, Zann Kwan, is a former employee of The -2- She appeals from a judgment of The District Court 1 the New York City Human Rights Law ( NYCHRL ), N.Y.C. Admin. 2 Code § 8-107.1 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 The District Court also dismissed the 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. 13 that the District Court abused its discretion by denying her 14 statutory penalties under COBRA. 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. Kwan also alleges For the reasons that follow, 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. -3- 1 2 3 BACKGROUND 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. 8 735 F.3d 114, 118 (2d Cir. 2013) (citation and internal 9 quotation marks omitted). CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 10 11 12 I. Andalex is a small family-owned real estate management 13 company specializing in large gaming and commercial 14 properties. 15 Executive Officer. 16 Chief Investment Officer and Chief Operations Officer 17 respectively. 18 During the relevant time period, April 2007 to September 2008, 19 Andalex had approximately twenty to twenty-five employees. Allen Silverman is the founder and Chief Allen s sons, Andrew and Alex, are the Steven Marks is the Chief Financial Officer. 20 21 22 A. 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, -4- 1 health insurance, and was eligible for a year-end 2 discretionary bonus. 3 Andalex involved analyzing cash flows, preparing financial 4 models and projections, and performing due diligence on 5 investment properties. 6 plaintiff worked with Andrew Feder, the Managing Director of 7 Acquisitions. 8 very good and that he never had reason to criticize her 9 competence or diligence. The plaintiff s primary duties at From April to August 2007, the Feder testified that Kwan s work product was After Feder left Andalex in August 10 2007, Kwan reported directly to Steven Marks until she was 11 terminated in September 2008. 12 Silverman complimented Kwan s work and told her to [k]eep up 13 the good work. 14 $5,000. 15 In November 2007, Andrew In December 2007, she received a bonus of On September 24, 2008, Andalex terminated Burton Garber, 16 a male Andalex executive who had been with the company for 17 several years. 18 5:15 p.m., earlier than the standard departure time of 6:00 19 p.m. 20 going, she replied that she was leaving to play squash. 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. 23 plaintiff alleges that she received permission from Marks to 24 leave early, that her leaving had no effect on her work, and On September 25, 2008, Kwan left the office at Andalex alleges that when Marks asked Kwan where she was -5- Marks The 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. 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 Although Marks testified that he 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. 14 Kwan. Later that day, Andrew Silverman fired 15 16 17 B. 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. 20 she was fired because of her recent complaint about 21 discrimination. 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. She alleges that Kwan testified that on September 3, 2008, she -6- Alex allegedly told 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. 4 26, 2008, Kwan was fired. 5 Silverman made the decision to terminate Kwan.2 6 Silverman denies that the September 3 conversation ever 7 occurred. 8 9 About three weeks later, on September Andalex claims that Andrew Alex Andalex has denied that it retaliated against the 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. 12 initially contended that its change in business focus to 13 international investments made the plaintiff s skill set 14 obsolete. 15 plaintiff s poor performance and bad behavior were the reasons 16 for the termination. Andalex Subsequently, it shifted to an explanation that the 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. -7- 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 [Kwan s] skill set no longer matche[d] what Andalex need[ed] from her position. . . . As Andalex s business shifted from U.S.-based office properties to Latin American hospitality and gaming interests, Ms. Kwan s skill set became increasingly obsolete. . . . Ms. Kwan has no experience in the hospitality or gaming industry . . . which Andalex deems necessary for the direction its business is headed. Notably, only weeks ago, Andalex terminated a senior portfolio manager who is male, [Burton Garber,] because it similarly concluded that his skill set was not a good match for the company going forward. 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. 26 introduction to the Position Statement explained that over the 27 course of Kwan s employment, Andalex s business changed 28 dramatically. 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 The Andalex switched its focus from the -8- 1 Caribbean and a business plan abroad. 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. 5 matched the needs of either Andalex or its foreign hospitality 6 and gaming division. 7 Kwan s poor performance or behavioral problems contributed to 8 the decision to terminate her. 9 The Position Rather, her skill set no longer The introduction did not allege that The body of the Position Statement also focused almost 10 exclusively on Andalex s change in business focus. 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. 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 21 22 23 24 25 26 27 28 Andalex Andalex represented that Kwan was unable to While Ms. Kwan s performance in the context of the domestic real estate aspect of the operation was acceptable, she had failed and had been unable to make the transition to the foreign hospitality and gaming aspect of the business operation. In this context, . . . her employment was terminated . . . . During the same time frame, Burton Garber, a male, who is not of Asian nationality, was also notified of his termination based upon the disposition of -9- 1 2 3 4 Andalex s domestic real estate portfolio growing focus on foreign business. and the 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. 8 repeated this position: Andalex 9 10 11 12 13 14 15 16 17 18 19 20 21 22 As noted above, the company s emphasis shifted from real estate in the United States to hospitality and gaming in Latin America and the Caribbean. Ms. Kwan did not have experience in hospitality or gaming acquisitions. She also did not speak Spanish. Her skills simply no longer fit in with the business of the company. . . . Ms. Kwan was never singled out for disparate treatment. Ms. Kwan conveniently fails to note that Mr. Garber s employment had been terminated around the same time that her employment had been terminated. His termination was for the same basic reasons as was Ms. Kwan. 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. 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 30 31 32 33 34 35 In the argument section of its Position Statement, The Andalex asserts that Ms. Kwan did not have the needed qualifications and abilities to transition with the changes in corporate focus. Ms. Kwan and Mr. Garber were both laid off at around the same time for the same business reasons. Andalex has presented a facially valid, independent and nondiscriminatory basis for the actions taken. -10- 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. 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 alleged there were Andalex also alleged that Kwan s behavior contributed to 11 its decision to terminate her. 12 least two occasions Kwan had behaved inappropriately by taking 13 photographs of Steven Marks despite his repeated requests that 14 she stop. 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 Andalex alleged that on at Andalex also claimed that [t]oward the end of her 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. 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. Kwan was This rationale undercut any -11- 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. 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. 9 the time [Kwan] came in, [Andalex was] looking to acquire Marks testified that Andalex s Marks testified that at 10 Curacao. . . . [and] some properties in Mexico. 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. 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 And [Andalex On the Andalex now alleges that Kwan s poor performance, 22 illustrated by three discrete incidents, was the chief reason 23 for her termination. 24 mentioned in Andalex s Position Statement before the EEOC. Of the three incidents, only one was -12- 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. 4 reassigned. 5 preparing a financial model for a casino acquisition in 6 Argentina. 7 preparing a financial projection for a Mexican acquisition and 8 that the projection contained significant errors. 9 Argentina project, nor the Mexico project, was mentioned in 10 11 The project was Andalex also alleges that Kwan was late in Additionally, Andalex claims that Kwan was late in Neither the the EEOC Position Statement. 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. 15 abide by the standard work hours, getting into work late, 16 leaving early, and taking long lunches. Marks also testified that Kwan did not 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. 23 Resources, Amy Piecoro was responsible for notifying Andalex s 24 health insurance claims administrator, Paychex, Inc. -13- As Director of Human 1 ( Paychex ), about Kwan s termination, so that Paychex could 2 send Kwan notification of her right to continue her health 3 insurance benefits. 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. Piecoro alleges that she completed and 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. 12 allegedly called Paychex several times in October and November 13 2009 to determine the amount she owed for her first premium 14 check. 15 form from Paychex, was $1,942.81 per month. 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. 19 that she could not afford the premium for coverage under the 20 Healthnet plan. 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. 24 did not enroll in the Healthnet plan. Kwan then The premium for the policy, stated in the notification On December 1, Kwan testified When the plaintiff sought clarification about -14- Kwan 1 The plaintiff remained unemployed and without health 2 insurance until she began new employment in Singapore in April 3 2010. 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. 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. 12 evidencing her medical expenses or demonstrating that she had 13 delayed seeking medical attention for any ailments. Kwan testified that from the time her Andalex coverage Kwan alleges that she Kwan was unable to locate any documents 14 15 16 17 18 II. The District Court granted Andalex s motion for summary judgment and dismissed all of Kwan s claims. 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). 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 -15- The District 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. 9 summary judgment, Kwan also argued that her complaint stated a In response to Andalex s motion for 10 claim for hostile work environment. 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 The District Court 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). 23 no genuine dispute as to any material fact and the movant is 24 entitled to judgment as a matter of law. Summary judgment is appropriate where there is -16- Fed. R. Civ. P. 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. 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 Guilbert v. 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 23 24 A. Hostile Work Environment Claims Kwan s complaint does not assert a claim for hostile work environment and Kwan did not raise the prospect of such a -17- 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. 6 not address the merits of that late-asserted claim. 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 We agree with the District Court and will See 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 16 B. Retaliation Claims 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 -18- 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. 6 Cir. 2010); Dawson, 398 F.3d at 216-17; Reed, 95 F.3d at 7 1177.3 8 9 See Hicks v. Baines, 593 F.3d 159, 164 (2d 1. 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. 16 (2d Cir. 2005) (citation and internal quotation marks 17 omitted). Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 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). -19- 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. 12 prima facie case, a plaintiff may rely on general corporate 13 knowledge of her protected activity to establish the 14 knowledge prong of the prima facie case.4 15 Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) ( Neither [the 4 However, for purposes of a Gordon v. N.Y.C. 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. -20- 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). 5 the plaintiff made her September 3 complaint to Alex 6 Silverman, an officer of the corporation. 7 sufficient to impute to Andalex general corporate knowledge of 8 the plaintiff s protected activity. 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). 14 prima facie case. 15 Here, This complaint was See Reed, 95 F.3d at 1178 Therefore, Kwan satisfied the knowledge prong of the This case is a good illustration of why corporate 16 knowledge is sufficient for purposes of a prima facie case of 17 retaliation. 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 24 If that were not true, a simple denial by a The District Court also held that Kwan had not satisfied the causation prong because she had adduced no facts plausibly -21- 1 suggesting that the September 3 conversation with Alex 2 Silverman was causally related to her termination by Andrew 3 Silverman. 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. 8 Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d 9 Cir. 2001) (citation and internal quotation marks omitted); 10 However, even without direct evidence of Gorman-Bakos v. Cornell 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. 17 2517, 2533 (2013). 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. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. However, the but-for causation standard 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 -22- 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. 7 for her retaliation claims. 8 9 Therefore, Kwan presented a prima facie case Once the plaintiff has established a prima facie showing of retaliation, the burden shifts to the employer to 10 articulate some legitimate, non-retaliatory reason for the 11 employment action. 12 (2d Cir. 2011). 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. United States v. Brennan, 650 F.3d 65, 93 In this case, the defendant has proffered the 16 17 18 2. 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. -23- 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. 6 Cir. 2000). 7 evidence that the defendant s proffered, non-retaliatory 8 reason is a mere pretext for retaliation. 9 See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d The plaintiff must then come forward with Id. 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. 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 17 absence of the retaliatory motive.5 Nassar, 133 S. Ct. at 2526, 2533. 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 -24- 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, non- 5 retaliatory reasons for its action. 6 a reasonable juror could conclude that the explanations were a 7 pretext for a prohibited reason. From such discrepancies, 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. -25- 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. 16 convenient explanation because it undercut any claim of gender 17 or national origin discrimination. 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. 21 Andalex s main representation to the EEOC. 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 This was a However, Marks, Andalex s Marks s testimony directly contradicts -26- Moreover, while 1 the EEOC as reasons for Kwan s termination. 2 discrepancies a reasonable juror could infer that the 3 explanations given by [Andalex] were pretextual. 4 Allen, 44 F.3d at 120; see also Byrnie, 243 F.3d at 106.6 5 From such Ethan 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. 12 Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per 13 curiam). 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 El Sayed v. However, a plaintiff may rely on evidence comprising 6 See 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. -27- 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 ); 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 Quinn v. Green Tree Credit 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 -28- 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 5 retaliation.7 6 7 8 II. COBRA Claim 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. 12 because there was no evidence that the plaintiff suffered harm 13 from her lack of coverage. 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 The District Court dismissed Kwan s COBRA claim Because Kwan has made no showing 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. 20 Extebank Deferred Comp. Plan (B), 216 F.3d 283, 290 (2d Cir. 21 2000). See Demery v. 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. -29- 1 receive health benefits at the group rate even after the 2 termination of her employment. 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 29 U.S.C. §§ 1161(a), 1163(2). 10 court s discretion be personally liable to such participant or 11 beneficiary in the amount of up to [$110]8 a day from the date 12 of such failure or refusal . . . . 13 also Deckard v. Interstate Bakeries Corp. (In re Interstate 14 Bakeries Corp.), 704 F.3d 528, 534-37 (8th Cir. 2013).9 15 id. § 1132(c)(1); see 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. -30- 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. 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 Devlin v. 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. 17 presented no evidence of bad faith or intentional misconduct 18 by Paychex or Andalex. 19 Interstate Bakeries Corp., 704 F.3d at 537. 20 Kwan See Devlin, 274 F.3d at 90; In re 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 -31- 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. 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). 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 To See In re 10 Interstate Bakeries Corp., 704 F.3d at 536. 11 District Court acted well within its discretion when it 12 dismissed the claim for statutory penalties because there was 13 no showing of bad faith and Kwan suffered no harm.10 14 15 16 Therefore, the CONCLUSION We have considered all of the arguments of the parties. 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). -32- 1 either moot or without merit. 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. 5 for further proceedings consistent with this opinion. -33- For the reasons explained The case is REMANDED 1 2 3 BARRINGTON D. PARKER, Circuit Judge, concurring in part and dissenting in part: 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 1 Ctr. v. Nassar, 133 S. 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. Even accepting, for the purposes of argument, that Kwan has 14 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 1 in 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 1 proximity might have in this case is washed away by the facts that 2 Plaintiff did not offer any evidence to suggest that the decision 3 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
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