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United States District Court, S.D. New York

August 16, 2005.

ANTHONY J. PRINCIPI, Secretary, U.S. Department of Veteran Affairs, Defendant.

The opinion of the court was delivered by: NAOMI BUCHWALD, District Judge


William Chamberlin brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by 42 U.S.C. § 1981 ("Title VII"), for alleged gender discrimination and unlawful retaliation in his workplace. The parties having completed discovery, defendant now moves for summary judgment against all of plaintiff's claims. For the reasons set forth herein, defendant's motion is granted.


  The parties agree generally on the following facts for purposes of this motion. To the extent there are factual disputes, they will be noted below.

  I. Plaintiff's Employment at the VA Hudson Valley Healthcare System

  Plaintiff received his doctorate in education in the field of psychological counseling from Columbia University in 1993. In late 1992, while he was pursuing that degree, plaintiff was selected for a one-year internship in the psychology service of the VA Hudson Valley Healthcare System (the "VA Hospital"). In March 1994, after he received his degree, plaintiff was selected for the permanent position of Admissions and Aftercare Coordinator ("AAC") for the Post-Traumatic Stress Disorder ("PTSD") Unit of the hospital. The Chief and Assistant Chief of the psychology service at the time were Dr. Andrew Eichmann and Dr. Leslie Green, respectively. As Chief of the psychology service, Dr. Eichmann approved plaintiff's hiring.

  A. Plaintiff's Elevation to and Tenure as Director of the PTSD Unit

  In August 1995, Dr. Jay Buckiewicz announced that he would resign from his position as Director of the PTSD Unit. At a meeting shortly thereafter, the unit's Treatment Coordinators recommended that plaintiff be promoted to succeed Dr. Buckiewicz. Drs. Eichmann and Green approved that recommendation, and, in December 1995, plaintiff was promoted. Subsequent to his promotion, plaintiff continued to fulfill duties on the unit as an AAC and as a Treatment Coordinator, practicing individual and group therapy.

  Also in the fall of 1995, Helaine Shimel, a clinical nurse specialist on the PTSD Unit, was promoted to the position of Clinical Coordinator. Shimel had been employed as a Treatment Coordinator on the PTSD Unit since 1985, when the unit was first created. As a result of Shimel's long tenure and experience on the unit, she was often referred to as an Assistant Director, and she frequently assumed program responsibility for the unit when other Directors were not present.*fn1

  B. The Deterioration of Plaintiff's and Shimel's Relationship

  Plaintiff alleges that, notwithstanding her promotion to Clinical Coordinator, Shimel often ignored or otherwise violated basic hospital rules, which threatened the PTSD Unit's orderly and effective operation. For example, plaintiff alleges that Shimel frequently reported to work between 30 and 45 minutes late, failed to file treatment plans and assign Treatment Coordinators in a timely manner and failed timely to log progress notes into patient charts. As the unit's Director, plaintiff attempted to correct these problems by talking to Shimel. When the problems persisted, plaintiff attempted to address them with Drs. Eichmann and Green, even going so far as to suggest that Shimel be "counseled" by the hospital's nursing supervisor. Plaintiff alleges that Drs. Eichmann and Green not only refused to take his complaints seriously, but also directed him not to speak to the nursing supervisor about Shimel.

  According to plaintiff, beginning in early April 1996, Shimel began acting "very hostile[ly]" toward him. Among other things, plaintiff alleges that Shimel refused to speak to him about unit business, refused to make eye contact with him, criticized his performance as Director during unit staff meetings, repeatedly told PTSD employees that he should be replaced as the unit's Director, yelled and screamed at him, failed to provide him with important work and patient related information and refused to follow his directives. Plaintiff contends that he complained frequently to Drs. Eichmann and Green about this behavior but that they never took any action to correct it.

  On May 6, 1996, Drs. Eichmann and Green provided plaintiff with a yearly written evaluation that denoted an ultimate performance rating of "Fully Successful." That rating was lower than the "Highly Successful" rating plaintiff had received the previous year.

  On May 16, 1996, in a private meeting with Shimel, plaintiff advised Shimel that if she did not correct her tardy submission of various forms he would recommend her removal from the PTSD Unit. Plaintiff contends that, during a subsequent meeting with Dr. Eichmann on May 22, 1996, Dr. Eichmann "berat[ed him] for `threatening' Shimel" with removal from the unit. Plaintiff responded to Dr. Eichmann by stating his impression that Dr. Eichmann was treating him and Shimel differently as a result of gender discrimination.

  In the weeks that followed, plaintiff's and Shimel's relationship deteriorated even further. According to plaintiff, Shimel continued to refuse to comply with plaintiff's work related directives, and plaintiff continued to complain about this conduct to Dr. Eichmann, but to no avail. During meetings on May 31, 1996 and June 21, 1996 among plaintiff, Shimel and Drs. Eichmann and Green, Shimel voiced her dissatisfaction with plaintiff's handling of unit business. After one of those meetings, as Shimel and plaintiff returned to the PTSD Unit, Shimel allegedly screamed at plaintiff, "Get out of my way."

  C. Shimel's Replacement of Plaintiff as Director of the PTSD Unit

  On July 10, 1996, Drs. Eichmann and Green notified plaintiff that he would be replaced as Director of the PTSD Unit by Shimel. During that meeting, Dr. Green allegedly told plaintiff that plaintiff "deserved what [he] was getting" and that "now the shoe was on the other foot." Plaintiff contends that he then requested that Drs. Eichmann and Green take measures to protect him from "retaliation" by Shimel but that they ignored that request.

  On July 18, 1996, Shimel took over the job of Director and plaintiff returned to performing his previous duties as a Treatment Coordinator and the PTSD Unit's AAC, the position he had held prior to being promoted to Director.

  D. Plaintiff's Administrative Complaints and the Alleged Retaliation

  1. The First EEO Complaint

  On August 23, 1996, plaintiff contacted an Equal Employment Opportunity ("EEO") counselor at the VA Hospital and submitted a complaint alleging gender discrimination (the "EEO complaint"). In the complaint, plaintiff detailed many of the facts outlined above, arguing that: (i) the conduct directed toward him in the period from December 1995 through July 1996 constituted a hostile work environment; and (ii) both his "downgraded" evaluation of "Fully Successful" in May 1996 and his ultimate demotion from the Director position in July 1996 were the result of unlawful gender discrimination.

  According to plaintiff, Shimel and Drs. Eichmann and Green began to retaliate against him shortly after he submitted his EEO complaint. In the fall of 1996, for example, plaintiff repeatedly attempted to convince Shimel and Dr. Eichmann to allow him to lead an Anger Management Group, but Shimel refused and Dr. Eichmann ignored his requests. Beginning in September 1996, plaintiff repeated his complaints to Dr. Eichmann that Shimel and other female employees on the unit were reporting to work late, but Dr. Eichmann ignored these complaints. During a September 27, 1996 meeting, Shimel proposed that plaintiff be replaced as leader of an Awareness Group.*fn2 During morning staff meetings, when plaintiff repeatedly volunteered to serve as a replacement group leader or a focus group leader, Shimel ignored him and either gave the assignments to others or combined groups so that replacement leaders would not be necessary. Similarly, Shimel denied plaintiff's requests to lead Community Meetings, at which staff and patients discussed issues important to the PTSD Unit. Plaintiff alleges that, throughout this time, Shimel kept from him important information about the running of the PTSD Unit, including meeting times, information about plaintiff's patients, planned patient trips and patient discharges. Plaintiff contends that he complained about all of this conduct to Dr. Eichmann but that Dr. Eichmann did not take any remedial action.

  2. The Second EEO Complaint

  On January 6, 1997, plaintiff again contacted an EEO counselor, this time to submit a complaint that he was being retaliated against for his previous EEO complaint. Plaintiff alleges that, despite this second complaint, the retaliation against him did not abate but continued for the next three years "in a somewhat diminished form." Shimel allegedly continued to deny plaintiff's requests to lead group therapy sessions. In June 1997, Drs. Eichmann and Green directed plaintiff to spend half of each workday for the month in Unit 4CD of the VA Hospital, an in-patient acute admissions unit that, according to plaintiff, had the reputation of being the unit to which "out-of-favor" employees were assigned. In November 1997, Dr. Eichmann gave plaintiff a written warning for leaving the hospital early one day even though plaintiff explained that he had left because he felt ill and had gone to see a doctor. In late 1998, Drs. Eichmann and Green "berated" plaintiff for thirty minutes for having sent a number of e-mails complaining that unit employees were not performing at an acceptable level. In March 1999, Dr. Green failed to take any action when Linda Russell, who had replaced Shimel as Director of the PTSD Unit, allegedly cursed at plaintiff. In August 1999, when plaintiff alerted Dr. Michael Sabo, the VA Hospital's Director, that Ms. Russell had kicked plaintiff with her foot under a table at a staff meeting, Dr. Sabo did not take any action but instead referred plaintiff to the hospital's security staff and EEO counselors. And in January 2000, Dr. Green removed plaintiff as the leader of a "higher functioning focus group," allegedly without sufficient basis.

  II. Plaintiff's Transfer From the PTSD Unit

  In the fall of 2000, plaintiff underwent triple bypass surgery to correct coronary disease that his physicians told him was largely due to stress. Shortly thereafter, on December 11, 2000, plaintiff requested that Dr. Sabo transfer him to another unit within the hospital where he would be supervised by people other than Drs. Eichmann and Green. The hospital agreed to the transfer, and plaintiff returned to work part-time on another unit in January 2001.*fn3

  III. Plaintiff's Complaint and the Motion for Summary Judgment

  Plaintiff filed his complaint with this Court on October 21, 2002. In it, he alleges that his "downgraded" evaluation in May 1996 and his ultimate demotion from the Director position in July 1996 constituted adverse employment actions under Title VII that were motivated by gender discrimination (the "Discrimination Claims"). He also alleges that his demotion from the Director position, as well as the conduct to which he was allegedly subjected subsequent to filing his EEO complaints, constituted actionable retaliation under Title VII (the "Retaliation Claims").*fn4

  Defendant now moves for summary judgment against all of plaintiff's claims. With respect to the Discrimination Claims, defendant argues primarily that plaintiff's "downgraded" evaluation was not an "adverse employment action" under Title VII and that plaintiff has failed to submit evidence that his subsequent demotion was the result of gender discrimination. With respect to the Retaliation Claims, defendant argues that there is no evidence of a causal connection between the alleged adverse employment action and any protected activity in which plaintiff was engaged. For the reasons set forth below, we agree with defendant's arguments and therefore grant its motion.*fn5


  A motion for summary judgment must be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the evidence submitted must be viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). While credibility determinations, weighing evidence and drawing legitimate inferences from facts are functions that the Court must leave to the jury, if the nonmoving party does not present evidence from which a reasonable jury could return a favorable verdict, then summary judgment is appropriate. See, e.g., Golden Pacific Bancorp. v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004). I. The Discrimination Claims

  The parties agree that the proper analysis in the context of a Title VII "adverse employment action" claim is the three-step burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). That analysis requires that we first ask whether plaintiff can establish that: (i) he belongs to a protected class; (ii) he was qualified for the position at issue; (iii) he suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See, e.g., Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). If plaintiff makes these showings, he has established a prima facie case of discrimination and the burden then shifts to defendant to articulate a legitimate, nondiscriminatory reason for its conduct. See McDonnell Douglas Corp., 411 U.S. at 802-03. If defendant is able to carry this burden, plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by defendant are not the true reasons for defendant's conduct but are pretext offered simply to avoid liability. See Burdine, 450 U.S. at 253.

  Plaintiff argues that he suffered two adverse employment actions: (i) his "downgraded" evaluation in May 1996; and (ii) his demotion from the Director position in July 1996. We examine those claims separately under the standards enunciated above.

  A. The "Downgraded" Evaluation Claim

  Defendant argues that plaintiff's "downgraded" evaluation in May 1996 was not an "adverse employment action" under Title VII. To establish an adverse employment action, plaintiff must present evidence of a "materially adverse change in the terms and conditions of [his] employment." Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (quoting McKenney v. New York City Off-Track Betting Corp., 903 F. Supp. 619, 623 (S.D.N.Y. 1995)). Although a showing of such drastic changes as termination or demotion is not required, plaintiff must point to a change in his employment status more severe than "mere inconvenience or an alteration of job responsibilities." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Courts in this Circuit have held that "negative evaluations, standing alone without any accompanying adverse result, are not cognizable." Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y. 2001); see also Durant v. NYNEX, 101 F. Supp. 2d 227, 233 (S.D.N.Y. 2000); Valentine v. Standard & Poor's, 50 F. Supp. 2d 262, 284 (S.D.N.Y. 1999). We agree with defendant that this holding applies here. Although plaintiff asserts in a conclusory fashion that the "Fully Successful" evaluation "hurt [his] professional career[and] impaired [his] future promotional opportunities within the VA as well as the opportunity to move to a lateral or higher position outside of the VA," Pl. Aff. ¶ 41, plaintiff does not provide any factual basis for how his career opportunities within or without the VA Hospital were damaged as a result of the lowered evaluation. To the contrary, as noted above, plaintiff alleges that, in December 2000, he applied for and was granted a lateral transfer to another unit within the hospital. To the extent that plaintiff asserts a stand alone discrimination claim based solely on his lowered evaluation, therefore, summary judgment must be granted against that claim.*fn6

  B. The Demotion Claim

  In support of his prima facie case on the demotion claim, plaintiff argues that circumstances giving rise to an inference of discrimination existed in that, while plaintiff and Shimel were similarly situated, they were treated differently when plaintiff was demoted and Shimel was promoted. Defendant disputes that these circumstances support an inference of discrimination but argues that, even if plaintiff could establish a prima facie case, there were legitimate, nondiscriminatory reasons for the hospital's choice to demote plaintiff and replace him with Shimel.*fn7

  1. Defendant's Proffered Reasons for Plaintiff's Demotion

  In support of its position, defendant offers a declaration by Dr. Eichmann that explains that the decision to appoint Shimel Director of the PTSD Unit was made because: (i) of the Treatment Coordinators on the PTSD Unit, Shimel had the longest tenure and the most experience treating veterans suffering from PTSD; (ii) Shimel had excellent clinical skills and judgment, which was important because the PTSD Unit was structured as a therapeutic community where primarily clinical, rather than administrative, decisions were paramount; (iii) Shimel was an extremely hard worker who often stayed at the hospital after her shift was over; (iv) Shimel had the confidence and respect of her peers on the unit, who recommended to Dr. Eichmann that he select her for the Director position; and (v) Dr. Eichmann's two closest advisors in the psychology service — both of whom were male — believed that Shimel should be appointed Director. Dr. Eichmann explains further that he decided not to have plaintiff continue as Director because: (i) he was not confident in plaintiff's clinical judgment and leadership ability; (ii) plaintiff had been on the PTSD Unit for only two years after completing his internship and obtaining his doctorate; (iii) he had not been impressed with plaintiff's descriptions of the functioning of the unit; (iv) he believed that plaintiff had shown poor judgment on two occasions when plaintiff had left a group therapy session before it was over and had left the PTSD Unit before his shift was over; and (v) he had been concerned with plaintiff's ability to control his anger when plaintiff had been an intern with the unit.

  Defendant also offers declarations from Drs. James Smith and David Funari, both former Directors of the PTSD Unit who worked closely with Shimel. Drs. Smith and Funari essentially reiterate Dr. Eichmann's views on Shimel's competence, contending that Shimel had excellent clinical skills and judgment and was highly qualified to serve as Director of the PTSD Unit.

  Under McDonnell Douglas Corp. and Burdine, this proffer of legitimate, nondiscriminatory reasons for plaintiff's demotion and Shimel's promotion is more than sufficient to shift the burden of proof back to plaintiff. Plaintiff must therefore prove by a preponderance of the evidence that defendant's proffered reasons for its conduct are pretextual. See Burdine, 450 U.S. at 253.

  2. Plaintiff's Evidence of Pretext

  Plaintiff argues that defendant's explanation for the demotion is pretextual because plaintiff was more qualified than Shimel to hold the Director position. In support of that argument, plaintiff refers us to previous written evaluations that he received from Dr. Eichmann and others praising his work. He further notes that he, but not Shimel, held a doctorate in psychology, which was a prerequisite for anyone who was to hold the Director position. Finally, plaintiff recounts several incidents in which Shimel allegedly broke hospital rules and interfered with the orderly running of the PTSD Unit. Plaintiff argues that a jury could rationally infer from all of these facts that Shimel's workplace performance and qualifications were inferior to plaintiff's and therefore that Shimel's replacement of plaintiff as Director of the PTSD Unit was the result of gender discrimination.

  We disagree. Although plaintiff may believe that he was more qualified for the Director job than Shimel was, what is relevant here is what Drs. Eichmann and Green thought. The function of the fact finder in a Title VII case is not "to second-guess business decisions" by the employer, but rather to determine whether the employer's proffered explanation for its actions is simply "a reason manufactured to avoid liability." Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988); see also Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) ("[T]he court must respect the employer's unfettered discretion to choose among qualified candidates.") (quoting Fischbach v. District of Columbia Dep't of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996)). To create a triable issue of fact, therefore, plaintiff must offer evidence from which a reasonable jury could conclude that defendant's proffered explanation is "so lacking in merit as to call into question its genuineness." Dister, 859 F.2d at 1116.

  The only direct evidence plaintiff offers to establish that Drs. Eichmann and Green did not, in fact, believe Shimel would handle the Director job more capably than plaintiff are the written evaluations that plaintiff received in May 1995 and May 1996. Although those evaluations do note that plaintiff was "fully successful" at his job, however, they do not contradict Dr. Eichmann's affidavit testimony and other evidence that he believed Shimel was better suited for the Director position than plaintiff was.*fn8 Accordingly, these evaluations are not sufficient to rebut defendant's legitimate explanations for plaintiff's demotion.

  Plaintiff's circumstantial argument that his superior qualifications, evidenced by his doctorate and by Shimel's conduct on the PTSD Unit, supports an inference of gender discrimination similarly fails to raise a triable issue of fact. As the Second Circuit has explained:

When a plaintiff seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer, that discrepancy must bear the entire burden of allowing a reasonable trier of fact to not only conclude the employer's explanation was pretextual, but that the pretext served to mask unlawful discrimination. In effect, the plaintiff's credentials would have to be so superior to the credentials of the person selected for the job that "no reasonable person, in the exercise of impartial judgment, would have chosen the candidate selected over plaintiff for the job in question."
Byrnie, 243 F.3d at 103 (quoting Deines v. Tex. Dep't of Protective and Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir. 1999)). Plaintiff simply cannot satisfy this standard on the evidence presented.

  With respect to plaintiff's and Shimel's conduct on the PTSD Unit, defendant has, as described above, presented affidavits and other evidence attesting to Shimel's competence, experience and effectiveness, including several contemporaneous "Proficiency Reports" that rate her performance as "Outstanding" and "High Satisfactory." Rosberger Reply Decl., Ex. F. Defendant has also presented evidence that plaintiff had shown poor judgment several times during his tenure on the unit, including by walking out of a group therapy session and leaving the PTSD Unit prior to finishing his shift. In light of this evidence, no reasonable juror could conclude that plaintiff's performance on the PTSD Unit was so superior to Shimel's that "no reasonable person, in the exercise of impartial judgment, would have chosen [Shimel] over plaintiff for the [Director] job." Byrnie, 243 F.3d at 103 (citation omitted). With respect to plaintiff's argument that he was qualified as a doctor of psychology, plaintiff has submitted a "Position Description" created by Dr. Eichmann in 1988 for the position of "Unit Coordinator, Vietnam Veterans Evaluation and Treatment Program." Beranbaum Aff., Ex. 18. The document lists a "[r]ecommended" qualification of "Psychologist" for the individual holding the position. Plaintiff, citing Evans v. Port Authority of New York and New Jersey, 192 F. Supp. 2d 247, 271-72 (S.D.N.Y. 2002), argues that this document shows that "Shimel was promoted to a position for which she did not meet the approved job requirements" and therefore that an inference of pretext can be made. Pl. Opp'n at 26.

  Defendant responds with a declaration by Dr. Eichmann stating that the "Psychologist" qualification was only recommended, not required, because none of the duties performed by the Unit Coordinator*fn9 necessitated a doctorate in psychology. In fact, Dr. Eichmann states, former Unit Coordinators at the VA Hospital and other similar PTSD facilities around the country have been individuals who are not psychologists. Defendant also points out that plaintiff conceded at his deposition that it was "not a real requirement" that a Director of the PTSD Unit hold a doctorate in psychology and that a psychiatrist, a social worker or a nurse could each be qualified to hold that position without obtaining a doctorate in psychology. Rosberger Decl., Ex. A at 394-95.

  In light of defendant's uncontroverted explanation that a doctorate in psychology was not, in fact, a required qualification for the Director position, as well as the testimony in support of Shimel's other qualifications for the job, including her many more years of experience than plaintiff's on the PTSD Unit, we do not think that Shimel's lack of a doctorate is significant to the determination whether defendant acted with the requisite discriminatory motive in promoting Shimel over plaintiff. Certainly, it is an insufficient basis for any rational juror to conclude, as would be required, that "no reasonable person" could have believed that Shimel would be better suited for the job than plaintiff.*fn10 Independent of plaintiff's failure to present sufficient evidence of pretext or discriminatory intent, several of the circumstances surrounding the events at issue in this case bolster defendant's claim that discrimination had nothing to do with plaintiff's demotion. First, every Director of the PTSD Unit prior to Shimel had been a man. In fact, Dr. Eichmann himself appointed five of those previous male Directors. Second, the fact that Dr. Eichmann, the person allegedly responsible for plaintiff's promotion to Director, was the same person to replace plaintiff with Shimel approximately seven months later strongly supports an inference that there was no discrimination involved. See, e.g., Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137-38 (2d Cir. 2000) (where the same person hires and fires and "where the termination occurs within a relatively short time after the hiring there is a strong inference that discrimination was not a motivating factor in the employment decision"). Third, Drs. Eichmann and Green, like plaintiff, are men, which undercuts the allegation that they discriminated against men in their employment decisions. See, e.g., Spiegler v. Israel Discount Bank of New York, No. 01 Civ. 6364, 2003 WL 21488040, *10 (S.D.N.Y. June 25, 2003) (holding that employer's membership in protected class weighs against allegation that employer discriminated against members of the same class). In light of these circumstances, as well as the lack of affirmative evidence supporting an inference of discrimination, we find that there is no genuine issue of material fact on the question of discriminatory intent. Summary judgment on the Discrimination Claims is therefore appropriate.

  II. The Retaliation Claims

  In order to establish a prima facie case of retaliation under Title VII, plaintiff must establish that: (i) he engaged in a protected activity; (ii) the VA Hospital was aware of this activity; (iii) the hospital took an adverse employment action against him; and (iv) a causal connection exists between the adverse employment action and the protected activity. See, e.g., Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). If plaintiff establishes a prima facie case, then the same burden shifting analysis that was applicable in the context of the Discrimination Claims applies here as well. See, e.g., Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) ("Upon such a [prima facie] showing, the defendant must demonstrate legitimate reasons for its actions, whereupon the plaintiff bears the burden of showing that the defendant's explanations are pretext for the true discriminatory motive.")

  Plaintiff argues that he suffered three adverse employment actions as a result of his protected complaints of gender discrimination. First, plaintiff argues that his demotion from the Director position was a result of his statement to Dr. Eichmann in a May 22, 1996 meeting that he suspected Dr. Eichmann's criticism of his conduct to be due to gender discrimination. Second, plaintiff argues that his alleged hostile treatment by Shimel and Drs. Eichmann and Green in the months and years after he submitted his EEO complaints was a result of those complaints. Third, plaintiff argues that, in retaliation for his EEO complaints, Shimel limited his job responsibilities, including by not selecting him to lead group therapy sessions, not allowing him to run a unit meeting and withholding information from him about meetings, events and patients. Defendant challenges each of these claims.

  A. Demotion

  With respect to plaintiff's argument that his demotion constituted retaliation, the reasons stated above in support of summary judgment against the Discrimination Claims apply in the retaliation context as well. That is, plaintiff's inability to prove that defendant's legitimate explanation for the demotion is pretextual for purposes of the Discrimination Claims likewise bars a retaliation claim based on the demotion, where the same burden-shifting analysis applies. Accordingly, summary judgment is granted against this claim.

  B. Hostile Conduct and Lessened Job Responsibilities

  With respect to plaintiff's contention that he suffered hostile conduct and lessened job responsibilities as a result of submitting his EEO complaints, defendant argues, among other things, that plaintiff cannot establish the fourth element of the prima facie case, namely, a causal connection between the alleged adverse employment actions and plaintiff's protected EEO activity. Plaintiff counters with two arguments. First, plaintiff offers a March 2001 affidavit sworn to by Dr. Gladys Frankel (the "Frankel Affidavit"), a former employee of the VA Hospital, stating that Shimel told her shortly after plaintiff submitted his first EEO complaint that Shimel intended to retaliate against plaintiff. Second, plaintiff argues that the temporal proximity between his EEO complaints and the alleged retaliatory activity supports an inference of causation.

  1. The Frankel Affidavit

  The Frankel Affidavit was apparently submitted to the EEOC in support of an appeal by plaintiff in his EEOC proceedings approximately two and one half years after the Department of Veterans Affairs issued its final agency decision on plaintiff's complaints in August 1998. The affidavit purports to recount statements that Shimel made to Dr. Frankel in 1996 indicating that Shimel intended to retaliate against plaintiff for his EEO complaints by acting hostilely toward him and taking away some of his job responsibilities. Defendant argues that the affidavit constitutes hearsay that may not be considered on a motion for summary judgment.

  Under Fed.R.Civ.P. 56(e), affidavits supporting or opposing summary judgment must "be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." "Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). When an affidavit itself is not admissible, then "an implicit or explicit showing that the affiant is prepared to testify in a manner consistent with [the] affidavit is required to oppose summary judgment." Id. at 684.

  The Frankel Affidavit has been offered by plaintiff for the truth of the matters asserted therein. It therefore constitutes hearsay and would be inadmissible in its present form at trial under Fed.R. Evid. 802.*fn11 Accordingly, plaintiff must present some indication that Dr. Frankel is prepared to testify at trial consistently with her affidavit. None of plaintiff's papers present any such indication, however.*fn12 Accordingly, under Fed.R.Civ.P. 56(e), we may not consider the Frankel Affidavit in deciding this motion.

  2. Temporal Proximity

  Plaintiff's second argument in support of causation is that the temporal proximity between plaintiff's EEO complaints and the alleged retaliatory acts by Shimel and Drs. Eichmann and Green supports an inference that those acts were causally related to the EEO complaints. The evidence submitted does not support plaintiff's argument.

  i. Shimel's Conduct

  With regard to Shimel, it must be remembered that plaintiff contends that her hostility toward him began long before plaintiff first contacted the hospital's EEO counselor on August 23, 1996. Indeed, according to plaintiff's statement pursuant to Local Rule 56.1, "[s]tarting in early April 1996, Ms. Shimel became very hostile towards Dr. Chamberlin, refusing to speak to him about Unit business or make eye contact with him, criticizing his performance as Unit Director during Unit staff meetings, and repeatedly telling Unit members that he should be replaced as Unit Director." Pl. Rule 56.1 Statement ¶ 66. Plaintiff further alleges that: (i) "[d]uring the months of April and May [1996], Ms. Shimel yelled and screamed at Dr. Chamberlin, and on one occasion backed him up against the wall of his office in what Dr. Chamberlin perceived was a genuine threat of violence," id. ¶ 67; (ii) "[f]rom April 1996, Ms. Shimel provided Dr. Frankel and Ms. Russell with important work-related and patient-related information, but failed to do so for Dr. Stang or Dr. Chamberlin," id. ¶ 68; (iii) "[t]here was an inner circle made up of the female Treatment Coordinators . . . [and t]he exclusiveness became even more noticeable after Ms. Shimel became PTSD Unit Director in July [1996] when the women frequently hugged and kissed one another," id. ¶ 70; (iv) "Drs. Green and Eichmann convened meetings on May 31 and June 21, 1996 . . . which Ms. Shimel used to voice various complaints about Dr. Chamberlin, most of which were trivial and untrue," and after one of the meetings Shimel "screamed at [plaintiff], `Get out of my way,'" id. ¶¶ 78-79; and (v) "[o]n June 5, 1996 Ms. Shimel had Dr. Stang [instead of plaintiff] sit at the head of the table at a staff meeting, and introduced [Dr. Stang] as the first speaker," id. ¶ 80. In these circumstances, with one exception (discussed below), it cannot be inferred based on timing alone that Shimel's conduct, which began prior to plaintiff's EEO complaints, was caused by those complaints. See Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir. 2001) ("Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise."); Castro v. New York City Bd. of Educ. Personnel, No. 96 Civ. 6314, 1998 WL 108004, *9 (S.D.N.Y. Mar. 12, 1998) ("It is unreasonable to infer that the continuation of behavior that had preceded the filing of the plaintiff's complaint was somehow motivated by that complaint.").

  Plaintiff seeks to avoid this result by arguing that Shimel's conduct "escalated to a new level" after plaintiff filed his first EEO complaint. Plaintiff argues, for example, that, "[p]rior to [his] filing the EEO Complaint, Shimel spoke, if minimally, to Chamberlin," but after the complaint was filed "Shimel stopped speaking to [him]," "sent him notes through intermediaries" and "refused to acknowledge him or make eye contact." Pl. Opp'n at 12, 33. We do not agree that the evidence can support the characterization plaintiff gives it, however. Certainly, no one can deny that there was serious personal animosity between Shimel and plaintiff, and even that Shimel may have desired that plaintiff be removed from the PTSD Unit altogether. But that animosity plainly existed long before plaintiff submitted his EEO complaints. In order to establish causation on the basis of temporal proximity alone, plaintiff would have to show that Shimel altered her conduct in some material way after plaintiff submitted his EEO complaints. Otherwise, the causation requirement would be stripped of any real meaning. Here, however, we can discern only one aspect of Shimel's hostile conduct that grew materially worse after the EEO complaints were submitted.*fn13

  The one exception that arguably supports an inference of causation is plaintiff's allegation that, before his EEO complaints were filed, Shimel "routinely" selected him to serve as a replacement leader for therapy groups whose regular leaders were unavailable, but that she stopped doing this after she became Director and plaintiff submitted his EEO complaints. Pl. Opp'n at 12, 33. Although this allegation seems to satisfy the causation requirement, however, it does not satisfy the third prong of the prima facie case, namely, that plaintiff's inability to volunteer to lead group therapy sessions was an "adverse employment action" for purposes of Title VII. Treglia, 313 F.3d at 719.

  To establish that he suffered an "adverse employment action" in the retaliation context, plaintiff must establish that he suffered a "materially adverse change in the terms and conditions of [his] employment." Richardson v. New York State Dep't of Correctional Service, 180 F.3d 426, 446 (2d Cir. 1999). Although the Second Circuit has held that this category of employment actions is "broad," see Treglia, 313 F.3d at 720; see also Richardson, 180 F.3d at 446 (retaliatory co-worker harassment); Gallagher v. Delaney, 139 F.3d 338, 350 (2d Cir. 1998) (loss of liberal vacation pay, prestigious position and favorable performance reviews), we do not think that Shimel's failure to select plaintiff to lead voluntary group therapy sessions was so detrimental to plaintiff's job experience as to be "adverse" for purposes of Title VII. In the period after he submitted his EEO complaints, plaintiff continued to lead his previously assigned therapy groups, he established and led new therapy groups, he continued to fulfill his duties as the PTSD Unit's AAC, he treated patients individually and he attended unit staff and Treatment Coordinator meetings. Pl. Rule 56.1 Statement ¶¶ 35-37. Moreover, there is no allegation that plaintiff received any decrease in pay or benefits during this time. Nor does plaintiff allege that denial of an opportunity to voluntarily lead therapy groups on an ad hoc replacement basis would harm his resume in any significant way. In these circumstances, we cannot conclude that plaintiff suffered an "adverse employment action" sufficient to create liability under Title VII. Accordingly, we find that plaintiff has failed to raise a triable issue of fact with respect to his retaliation claim based on Shimel's conduct, and therefore that summary judgment is appropriate.

  ii. Drs. Eichmann's and Green's Conduct

  The majority of plaintiff's allegations against Drs. Eichmann and Green also fails because the timing of the conduct alleged does not support an inference of causation. For example, plaintiff alleges that Drs. Eichmann and Green ignored his complaints about Shimel's hostility and her disregard of hospital rules long before he submitted his EEO complaints. See, e.g., Pl. Aff. ¶¶ 33-36 (alleging that plaintiff's complaints about Shimel's rule-breaking were ignored as early as January 1996); id. ¶¶ 38, 40 (alleging that, beginning in April 1996, plaintiff complained at least once per week to Drs. Eichmann and Green about Shimel's hostility); id. ¶ 87 ("In September 1996, I repeated my complaint to Dr. Eichmann that Ms. Shimel and the other female Treatment Coordinators repeatedly reported late to work." (emphasis added)). On the other hand, many of plaintiff's allegations concern conduct that is too remotely after-the-fact to raise an inference of causation based on timing. Plaintiff alleges, for example, that: (i) Drs. Eichmann and Green gave him a written complaint for leaving work early in November 1997, id. ¶ 91; (ii) in "late 1998," Drs. Eichmann and Green "berated" plaintiff for sending a series of e-mails "stating that the Unit was dysfunctional, staff members were not performing at an acceptable level, and that the Unit was at risk," id. ¶ 93; (iii) in early 1999, Dr. Eichmann "criticized" plaintiff for raising questions about the supervision of an intern, id. ¶ 95; and (iv) in mid-1999, Drs. Green and Sabo ignored plaintiff's complaints about the conduct of then-Director Linda Russell, id. ¶¶ 99-102. None of this conduct is alleged to follow plaintiff's EEO complaints closely enough in time to support an inference that it was a result of those complaints.

  There is one exception, which is plaintiff's allegation that, in June 1997,*fn14 Drs. Eichmann and Green directed plaintiff to spend half of every work day for the month in Unit 4CD, "an in-patient acute admissions unit with a very difficult patient population." Id. ¶ 90. Because this action followed plaintiff's second EEO complaint by a matter of four months, it is conceivable (although unlikely) that it could have been taken in retaliation for that complaint. Defendant, however, has submitted a declaration by Dr. Eichmann stating that he assigned plaintiff to work half time in Unit 4CD for June 1997, not to retaliate against plaintiff, but rather "because there was an acute need on that Unit for psychology services and [he] judged that the clinical backup on the PTSD Unit was more sound than other possible alternatives for this brief period." Rosberger Decl., Ex. D ¶ 9. This explanation is sufficient under McDonnell Douglas Corp. and Burdine to shift the burden to plaintiff to prove pretext, a burden that plaintiff has not undertaken to carry. Accordingly, we cannot see any triable issue of fact as to whether Drs. Eichmann and Green engaged in retaliation, and summary judgment is therefore appropriate.


  For the reasons set forth above, defendant's motion for summary judgment is granted in its entirety. The Clerk of the Court is respectfully requested to close this case on the Court's docket.


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