McDowell v. McDonough et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TYRONE MCDOWELL,
Plaintiff,
v.
DENIS MCDONOUGH, Secretary
Department of Veterans Affairs,
Defendant.
REPORT AND
RECOMMENDATION
21-CV-338-JLS-JJM
Before the court are defendant’s and plaintiff’s motions for summary judgment
[124, 128]1 pursuant to Fed. R. Civ.P. (“Rule”) 56. Having reviewed the parties’ submissions
([124, 136, 137, 138] and [128, 133, 134, 140]), and heard oral argument on March 6, 2025
[141], I recommend that defendant McDonough’s motion be granted and that McDowell’s
motion be denied.
BACKGROUND
On March 3, 2021 McDowell, proceeding pro se, commenced this action against
his employer, the Department of Veterans Affairs, and others, alleging discrimination due to his
race or color in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Complaint
[1]. McDowell alleged that based on his race and color, defendant McDonough, as Secretary (the
“Defendant”) of the Department of Veteran Affairs (the “VA”) subjected him to “harassment on
the basis of unequal terms and conditions of my employment”, “retaliation because I complained
about discrimination or harassment”, and “reprisal due to previous EEOC activity” in the course
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
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of his employment at the VA Western New York Healthcare System (the “Buffalo VA”). Id. at
3, 5, 7-8.
The VA argues it is entitled to summary judgement for four primary reasons: 1)
plaintiff’s claims are time-barred; 2) receiving additional job duties of a Controlled Substance
Coordinator (“CSC”) was not an adverse employment action; 3) there are no facts that give rise
to an inference of discrimination; and 4) the Buffalo VA had a legitimate, nondiscriminatory
reason for assigning the CSC duties to McDowell.
McDowell argues he is entitled to summary judgment because he was “subjected
to discriminatory and retaliatory actions when he was forced to perform additional, full-time
duties without compensation, denied career advancement opportunities, and unjustly treated in
the issuing of his performance evaluation”. Plaintiff’s Motion for Summary Judgment [128] at 1.
McDowell filed two additional cases related to his employment with Buffalo VA.
See McDowell v. McDonough, 22-cv-843 and McDowell v. McDonough, 22-cv-873. There are
motions to dismiss pending in each of those cases. Accordingly, only issues raised by McDowell
in his complaint in this case will be considered. The claims raised in his other cases will be
considered separately.
In this case, McDowell alleged that between October 2010 and January 2017 he
was required to work two full-time positions (Health Systems Specialist and Controlled
Substance Coordinator) while only being compensated for one of them, whereas none of his
white counterparts were subject to that requirement. Complaint [1] at 7. He further alleges that
once he complained of this treatment, the Buffalo VA refused to timely provide him with a copy
of his 2016 performance review, thereby preventing him from applying for other positions for
which he was qualified. Id. at 7-8.
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UNDISPUTED MATERIAL FACTS
McDowell received a promotion in August 2010 to the position of Health
Systems Specialist in the Director’s Office at the Buffalo VA. Plaintiff’s Statement of Material
Facts [134], ¶1. In October 2010, he was assigned the role of Controlled Substance Coordinator
as a collateral duty, i.e. with no additional pay. Id., ¶2. McDowell first contacted an Equal
Employment Opportunity (“EEO”) counselor on September 29, 2016. Plaintiff’s Opposition to
Defendant’s Motion for Summary Judgment [136] at 12; see also Plaintiff’s Exhibits [136-1] at
31; and Defendant’s Statement of Material Facts [124-32], ¶74. McDowell was relieved of the
CSC role on January 1, 2017. [134], ¶13.
Before McDowell was assigned CSC duties, they had been performed by an
African American woman, and before her, a Caucasian woman. See [124-32], ¶¶43, 452 ; see
also Declaration of Joshua Malecki [124-3], ¶¶11, 12. Both performed the role as a collateral
duty with no additional compensation. [124-32], ¶¶42, 44.
In December of 2016, to comply with a November 28, 2016 directive from the
Department of Veterans Affairs concerning the Inspection of Controlled Substances (which
replaced March 31, 2010 guidance concerning the Inspection of Controlled Substances) that
required facilities to appoint both a CSC and an alternate CSC, the Buffalo VA appointed two
Caucasian women to fulfill these roles, effective January 1, 2017. [124-32], ¶¶38, 51, 64 3 ; see
2 	In his Response to Defendant’s Statement of Material Facts [137], plaintiff generally denies these
paragraphs: “39-50 Denied as misleading”. [137] at 3. He subsequently includes a narrative response,
but does not dispute the race or sex of these individuals, nor that they performed the CSC position without
additional pay. See id. at 3-4.
3 	See n. 2, above. In addition, plaintiff does not provide any specific responses to paragraphs 51-65
and does not elsewhere dispute the race or sex of these individuals, nor that they performed the CSC and
alternate CSC positions without additional pay. He also does not dispute the existence or content of the
November 28, 2016 directive or the March 31, 2010 guidance that preceded it.
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also [124-17] (March 31, 2010 guidance); and [124-18] (November 28, 2016 directive). They
performed these roles as collateral duties with no additional compensation. Id., ¶¶61, 63.
The March 31, 2010 version of the guidance ([124-17]) was silent concerning the
time commitment required for the CSC position, and whether it should be a stand-alone, full time
position. It stated only that “[t]he CSC duties must be included in the employee’s position
description or functional statement.” [124-17] at 6. The November 28, 2016 directive, which
replaced the March 31, 2010 guidance, however, addressed these issues in greater detail:
“The VA medical facility Director is responsible for:
***
(6) Appointing a Controlled Substance Coordinator (CSC)
responsible for the inspection program, appointing an alternate
CSC to assist the CSC with coverage and program continuity and
assuring the following:
***
(b) The CSC and alternate CSC duties must be included in
the employee’s position description or functional statement. The
Director should discuss the time commitment with the CSC and
alternate CSC and their current supervisor and adjust other duties
as necessary to provide adequate time for the CSC and alternate
CSC to perform the inspection program duties. It is recommended
that Complexity Level 1 and multi-divisional facilities employ a
full time CSC. . . . NOTE: The duties may be added as an
addendum to the position description or functional statement.”
[124-18] at 7 (emphasis in original).
The CSC position may have been a stand-alone full time position at the Albany
VA. [124-32], ¶41; see also VA VISN2 Position Description [136-1] at 14-20 (identifying
“Albany VAMC” on the cover page and attaching a Position Description stating, “[t]he CSC
manages the Controlled Substances Inspection Program for VAMC Albany”).
McDowell asserts that he began asking about receiving his 2016 performance
review in November 2016. [134], ¶ 18. Although he had not received his evaluation, he
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nonetheless received an Outstanding Performance Award for his work performance that year.
Id., ¶ 20. He continued to ask about his performance appraisal throughout December 2016 and
January 2017. [136], at 13-14. He alleges that Dr. Stringfellow thereafter gave him a look of
disgust in response to him telling her good morning. Id. at 14. He ceased working on January
26, 2017 on the advice of his doctor. Id.; see also [136-1] at 89-90 (January 26, 2017 physician’s
note excusing McDowell from work through February 9, 2017 “due to work related stressors”).
By email dated July 17, 2017, McDowell contacted David Shulkin, the Secretary
of the Department of Veterans Affairs concerning his 2016 performance appraisal. [134], ¶31;
see also [136-1] at 118. He also raised this issue on or about July 18, 2017 to Rick Covert, and
on or about July 20, 2017 to Royce Calhoun. [134], ¶¶32-33; see also [136-1] at 120, 122. The
Buffalo VA provided McDowell with a copy of his 2016 performance appraisal on or about July
27, 2017. [134], ¶34; see also [136-1] at 132.
Defendant explains that the customary practice for completing performance
evaluations at the Buffalo VA is for employees to complete a self-assessment and then meet with
their supervisor to discuss their performance. [124-32], ¶814 . McDowell does not dispute that
this was the Buffalo VA’s practice for performance reviews. See [137] at 4-5 5 . Defendant
requested that McDowell provide his self-assessment on September 28, 2016, and again on
December 21, 2016. [124-32], ¶¶82-83. McDowell provided the self-assessment on December
4 	In his Response to Defendant’s Statement of Material Facts [137], plaintiff generally denies these
paragraphs: “81-90 Denied as misleading”. [137] at 4. He then provides additional context in narrative
form, including pointing out that VA policy does not require him to submit a self-assessment. [137] at 5.
5 	Plaintiff generally denied paragraphs 81-90 as “misleading” ([137] at 4) and stated that “[p]er VA
policy I am not required to submit a self-assessment”. Id. at 5. He does not, however, dispute that it was
the Buffalo VA’s practice to obtain self-assessments from employees prior to their in-person meeting with
their supervisor about their performance review. See id.
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22, 2016. Id., ¶84; see also [124-9] at 11-12 (McDowell’s December 22, 2016 email attaching
his self-assessment).
McDowell’s supervisor was thereafter “unable to arrange the meeting to discuss
performance” with him because he “took sick leave”, which was “repeatedly extended”. Id.,
¶¶85, 87. Although McDowell asserts that defendant’s statement that he was unavailable to meet
with his supervisor “is deceitful at best”, he does not contest that his sick leave was repeatedly
extended. See [137] at 5. Defendant asserts that McDowell’s first written request for his 2016
performance review was received on June 29, 2017. [124-32], ¶ 88; see also [124-9] at 22 (copy
of June 29, 2017 email correspondence). McDowell does not dispute this assertion. See
Plaintiff’s Response to Defendant’s Statement of Material Facts [137] at 4-56 .
Although he indicates that he “started inquiring” about his performance appraisal
in November 2016, the statement he submitted from Norma Hoffman, Ms. Stringfellow’s
secretary, documents numerous “requests” made to her, but does not indicate they were in
writing. [136-1] at 76. Further, Mr. McDowell’s June 29, 2017 email correspondence to Ms.
Hoffman references only conversations with Ms. Hoffman, but no written correspondence or
email. See [124-9] at 22. The Buffalo VA provided McDowell with a copy of his 2016
performance review on July 27, 2017. [124-32], ¶89; see also [124-9] at 25 (copy of July 27,
2017 email correspondence).
6 	Plaintiff generally denied paragraphs “81-90 . . . as misleading” ([137] at 4), but did not dispute
that his first written request for his performance review was made on June 29, 2017.
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DISCUSSION
A. 	Standard for Summary Judgment
“The standards governing summary judgment are well-settled. Summary
judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law. The party
seeking summary judgment has the burden to demonstrate that no genuine issue of material fact
exists. In determining whether a genuine issue of material fact exists, a court must examine the
evidence in the light most favorable to, and draw all inferences in favor of, the non-movant.
Summary judgment is improper if there is any evidence in the record that could reasonably
support a jury's verdict for the non-moving party.” Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.
2003).
B. 	Discrimination Based on Race
“Title VII prohibits an employer from engaging in intentional employment
discrimination - known as ‘disparate treatment - on the basis of race or national origin.” Mimosa
Pham v. Department of Children & Families, 2014 WL 3420470, *2 (D. Conn. 2014). See 42
U.S.C.A. §2000e-2(a)(1). Such claims “may be proven under a disparate treatment . . . theory of
liability” by demonstrating that “the defendant’s actions were motivated by a discriminatory
intent, either through direct evidence of intent or by utilizing the three-part burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Legg v. Ulster
County, 820 F.3d 67, 72 (2d Cir. 2016).
Under the burden-shifting framework, the plaintiff bears the burden of
establishing a prima facie case of discrimination by showing that: “1) he belonged to a protected
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class; 2) he was qualified for the position; 3) he suffered an adverse employment action; and 4)
the adverse employment action occurred under circumstances giving rise to an inference of
discriminatory intent.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008). “This showing
creates a presumption of retaliation, which the defendant may rebut by articulating a legitimate,
non-retaliatory reason for the adverse employment action.” Ya-Chen Chen v. City University of
New York, 805 F.3d 59, 70 (2d Cir. 2015). If the defendant proffers such a reason, the
presumption of discrimination created by the prima facie case “drops out of the picture”, and the
defendant “will be entitled to summary judgment . . . unless the plaintiff can point to evidence
that reasonably supports a finding of prohibited discrimination”. James v. New York Racing
Association, 233 F.3d 149, 154 (2d Cir. 2000). See also McDonnell Douglas, 411 U.S. at 804.
However, before that analysis can take place, it is appropriate to consider whether
plaintiff’s claim is properly before the court. “Federal employees are required to exhaust
administrative remedies by initiating [Equal Employment Office] counseling within 45 days of a
discriminatory act.” Demuth v. United States Small Business Administration, 819 Fed.Appx. 23,
26 n. 2 (2d Cir. 2020) (Summary Order), citing Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d
Cir. 2001); see also 20 C.F.R. §1614.105 (“[a]n aggrieved person must initiate contact with a
Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action”). “The 45-day period
serves as a statute of limitations; thus, as a general rule, claims alleging conduct that occurred
more than 45 days prior to the employee’s initiation of administrative review are time-barred”.
Fitzgerald, 251 F.3d at 359.
Here, McDowell was assigned to the CSC role in October 2010. Plaintiff’s
Statement of Material Facts [134], ¶2. His first complaint to the Equal Employment Office (the
“EEO”) was filed on September 29, 2016. Plaintiff’s Opposition to Defendant’s Motion for
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Summary Judgement [136] at 12. Accordingly, McDowell’s claims for any conduct that
occurred “more than 45 days prior” to September 29, 2016 – that is, prior to August 15, 2016 –
are time-barred. See Fitzgerald, 251 F.3d at 359. Therefore, unless some equitable doctrine tolls
the statute of limitations here, plaintiff’s claims related to the October 2010 assignment of CSC
duties are barred.
McDowell claims that he is not time-barred from asserting a claim concerning the
October 2010 assignment of CSC duties because the continuing violation doctrine applies.
Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment [136] at 2-3. “Under that
doctrine, if a plaintiff has experienced a continuous practice and policy of discrimination, the
commencement of the statute of limitations period may be delayed until the last discriminatory
act in furtherance of it.” Fitzgerald, 251 F.3d at 359 (internal quotations and alterations omitted).
Defendant argues that the continuing violation doctrine cannot apply here because
it applies solely to hostile environment claims, and because the assignment of CSC duties to
McDowell was a discrete act, not a continuing violation. Defendant’s Reply Memorandum of
Law [138] at 4-7.
I agree with defendant that the assignment to McDowell of the CSC role as a
collateral duty is not a “continuing violation” that can defeat the statute of limitations. It was a
discrete act. The Supreme Court analyzed continuing violations and discrete acts in National
Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002). There, the Court reversed the
Ninth Circuit’s holding that “so long as one act falls within the charge filing period,
discriminatory and retaliatory acts that are plausible or sufficiently related to that act may also be
considered for the purposes of liability”. Morgan, 536 U.S. at 114. Instead, the Court found that
the discrete acts that fell outside the limitations period were not actionable:
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“Discrete acts such as termination, failure to promote, denial of
transfer, or refusal to hire are easy to identify. Each incident of
discrimination and each retaliatory adverse employment decision
constitutes a separate actionable unlawful employment practice.
Morgan can only file a charge to cover discrete acts that occurred
within the appropriate time period. . . . All prior discrete
discriminatory acts are untimely filed and no longer actionable.”
Id. at 114-115. The Court distinguished discrete acts from continuing violations, such as claims
for a hostile work environment:
“Hostile environment claims are different in kind from discrete
acts. Their very nature involves repeated conduct. . . . The
‘unlawful employment practice’ therefore cannot be said to occur
on any particular day. It occurs over a series of days or perhaps
years and, in direct contrast to discrete acts, a single act of
harassment may not be actionable on its own.”
Morgan, 536 U.S. at 115; see also Chin v. Port Authority of New York & New Jersey, 685 F.32d
135, 156 (2d Cir. 2012) (“an allegedly hostile work environment . . . could be a continuing
violation because its very nature involves repeated conduct”).
Discrete acts that have lasting consequences are not continuing violations:
“The holding in Morgan is in accord with Second Circuit law
which states that alleged failures to compensate adequately,
transfers, job assignments and promotions cannot form the basis
for a continuing violation claim.”
Gross v. National Broadcasting Company, Inc., 232 F.Supp.2d 58, 68 (S.D.N.Y. 2002)
(collecting cases); see also Osby v. City of New York, 748 Fed. Appx. 375, 378 (2d Cir. 2018)
(Summary Order) (“a limitations period begins to run when an adverse decision was made and
communicated, not some time later when the plaintiff feels its inevitable consequence”).
Applying this case law to the undisputed facts here demonstrates that the
continuing violation doctrine does not apply under these circumstances. McDowell agrees that
the defendant assigned him to the CSC duties in October 2010. See [136-1] at 12 (September 8,
2010 correspondence assigning the CSC duties to McDowell effective October 1, 2010). The
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assignment of these duties was a singular event. It was communicated by a singular piece of
correspondence and became effective on a specific date. He also agrees that he made his first
complaint concerning that assignment on September 29, 2016, nearly six years later. See [136-1]
at 31 (Complaint of Employment Discrimination identifying the “Date of Initial Contact with
ORM” as 9/29/2016).
However, even if McDowell’s claims were timely, I would still recommend
granting defendant’s motion for summary judgment on McDowell’s disparate treatment claim.
Assuming, without deciding, that the facts in this case satisfy McDowell’s minimal burden to
establish a prima facie case of discrimination, he has not “point[ed] to evidence that reasonably
supports a finding of prohibited discrimination”, and the record here does not support such an
inference. James, 233 F.3d at 154.
“[O]nce a minimal prima facie case is proved and the employer’s
nondiscriminatory explanation has been given, the McDonnell
Douglas presumptions disappear from the case, and the governing
standard is simply whether the evidence, taken as a whole, is
sufficient to support a reasonable inference that prohibited
discrimination occurred. . . . [I]t mandates a case-by-case
approach, with a court examining the entire record to determine
whether the plaintiff could satisfy his ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff. . . . The relevant factors
identified by the Supreme Court include the strength of the
plaintiff’s prima facie case, the probative value of the proof that
the employer’s explanation is false, and any other evidence that
supports or undermines the employer’s case”.
Id. at 156 (internal quotations and alterations omitted). Such evidence could include “the
employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its invidious
comments about others in the employee’s protected group; or the more favorable treatment of
employees not in the protected group; or the sequence of events leading to the [adverse action]”.
Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015).
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There is simply no such evidence in the record. McDowell has pointed to no such
evidence, and I am unable to find any. The record is absent of any criticism of the plaintiff’s
performance in “ethnically degrading terms” or “invidious comments about others in the
employee’s protected group”. Littlejohn, 795 F.3d at 312. Further, the undisputed facts here
demonstrate that McDowell was not treated differently than other individuals assigned to the
CSC post at the Buffalo VA. He has not disputed, for example, that the white and black women
that held the post before him assumed that duty without additional pay. [124-3], ¶¶11-12, 42, 44;
see also [137] at 3. Nor has he disputed that the two white women who were appointed the CSC
and the alternate CSC after him assumed that duty without additional pay. Id. McDowell’s only
evidence that others received pay for that work is a VA VISN2 Position Description ([136-1] at
14-20) identifying “Albany VAMC” on the cover page and attaching a Position Description
stating, “[t]he CSC manages the Controlled Substances Inspection Program for VAMC Albany”.
However, McDowell does not dispute that the CSC position at the Buffalo VA, where McDowell
was employed, was an unpaid position both before and after he was assigned those duties. Nor
has he identified any similarly situated employee at the Buffalo VA who was treated differently.
Therefore, I recommend that defendant’s motion for summary judgment as to
McDowell’s claim for discrimination related to the assignment of CSC duties be granted, and
that McDowell’s motion on this claim be denied.
C. 	Retaliation
1. 	Burlington Northern applies to federal employees
As stated in the Report and Recommendation on defendant’s motion to dismiss,
claims for retaliation apply to “a broader range of conduct than does the adverse-action standard
for claims of discrimination under Title VII: The antiretaliation provision, unlike the substantive
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discrimination provision, is not limited to discriminatory actions that affect the terms and
conditions of employment”. [49] at 7. This principle, as defendant notes, stems from the
Supreme Court’s decision in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S.
53 (2006). See Defendant’s Memorandum of Law [124-31] at 28-29. Defendant argues,
however, that “[t]he holding in Burlington Northern does not . . . apply to retaliation claims by
federal employees because §2000e-3 does not apply to them. Instead, federal employees’
discrimination and retaliation claims are both governed by 42 U.S.C. §2000e-16”, which
provides protection only for discrimination in “personnel actions”. Id. at 29. Defendant argues
that the court should not “appl[y] the broader private sector standard to the federal government
when different standards govern what constitutes sufficiently adverse retaliation against a federal
employee versus a private employee”. Id. (quotation omitted). Defendant concludes that,
because I have “already recognized that Mr. McDowell cannot assert a discrimination claim
based on the delay, he also cannot maintain a retaliation claim based on the delay”. Id. at 30.
I do not agree. To support its argument, defendant does not cite any cases from
the Second Circuit or the Supreme Court. Instead, defendant cites cases from the Eleventh
Circuit, the Northern District of Alabama, and the Middle District of Florida. Id. at 29. Further,
I find support in Burlington Northern to support application of the standard stated therein to
retaliation claims involving federal employees. The Court in Burlington Northern granted
certiorari to resolve the disagreement between circuits concerning “whether Title VII’s
antiretaliation provision forbids only those employer actions and resulting harms that are related
to employment or the workplace” and “how harmful an act of retaliatory discrimination must be
in order to fall within the provision’s scope.” 	Burlington Northern, 548 U.S. at 61. The Court
noted that “[a]n employer can effectively retaliate against an employee by taking actions not
directly related to his employment or by causing him harm outside the workplace.” Id. at 63.
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Thus, the Court concluded that “[t]he scope of the antiretaliation provision extends beyond
workplace-related or employment-related retaliatory acts and harm”. Id. at 67.
In addition, concerning “the level of seriousness to which this harm must rise
before it becomes actionable retaliation”, the Court “agree[d] with the formulation set forth by
the Seventh and the District of Columbia Circuits”:
“In our view, a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, ‘which
in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.’”
Id. at 68, quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006). The Court’s
reliance on Rochon is important here, because Rochon involved an FBI agent’s claims of
retaliation against the FBI, i.e. claims of a federal employee against its federal government
employer. There, the D.C. Circuit explicitly considered whether the retaliation provision of 42
U.S.C. §2000e-3(a) was incorporated into §2000e-16(a), and found that it was:
“Here we must determine whether the Government is similarly
liable under §2000e-3(a) for retaliation that does not come in the
form of a personnel action. In other words, we must consider
whether, when referenced in §2000e-16(d) via §2000e-5(g)(1)-
2(A), the general ban on retaliation in §2000e-3(a) is limited by the
requirement in §2000e-16(a) that ‘all Government personnel
actions’ be made free from discrimination. We do not believe the
prohibition is so qualified. Nothing in §2000e-16(d) or §2000e-
5(g) suggests §2000e-3(a) is to be read differently when applied to
the Government. . . . In light of the Congress’s recognized intent in
1972 to apply to the Government the principles it had in 1964
applied to private employers, we now hold that an alleged act of
retaliation by the Government need not be related to the plaintiff’s
employment in order to state a claim of discrimination under Title
VII.”
Id. at 1219 (alterations omitted).
Because defendant has not cited any binding authority from this Circuit or the
Supreme Court to the contrary, I will follow Rochon and Burlington Northern here.
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Accordingly, I will consider McDowell’s and defendant’s motions for summary judgment on
McDowell’s retaliation claim using the Burlington Northern definition of retaliation, as adopted
by the Second Circuit: an “adverse action that could well dissuade a reasonable worker from
making or supporting a charge of discrimination”. Vega v. Hempstead Union Free School
District, 801 F.3d 72, 90 (2d Cir. 2015).
2. 	McDowell’s Retaliation Claim
Retaliation claims under Title VII are analyzed pursuant to the burden-shifting
evidentiary framework established by McDonnell Douglas. See Littlejohn v. City of New York,
795 F.3d 297, 315 (2d Cir. 2015).
“Under this framework, the plaintiff bears the initial burden to
establish a prima facie case of retaliation by offering evidence that
she participated in a protected activity, suffered an adverse
employment action, and that there was a causal connection
between her engaging in the protected activity and the adverse
employment action. This showing creates a presumption of
retaliation, which the defendant may rebut by articulating a
legitimate, non-retaliatory reason for the adverse employment
action. If the defendant provides such an explanation, the
presumption of retaliation dissipates, and the plaintiff must prove
‘that the desire to retaliate was the but-for cause of the challenged
employment action.’”
Ya-Chen Chen v. City University of New York, 805 F.3d 59, 70 (2d Cir. 2015) (quoting
University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 352 (2013)).
First, I doubt whether McDowell has, at this stage of the litigation, demonstrated
that the delay in providing him with his performance evaluation was an adverse employment
action, for purposes of establishing a prima facie case of retaliation. The court permitted
McDowell’s retaliation claim to go forward at the motion to dismiss stage because the allegation
in his Complaint that “the delay in providing him with his performance appraisal prevented him
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from applying for other employment opportunities in the Department of Homeland Security” was
assumed to be true. See [49] at 2-3, 6-7.
Here, at the summary judgment stage, notwithstanding that McDowell’s burden to
prove a prima facie case of discrimination “is a modest one”, “the plaintiff cannot meet this
burden through reliance on unsupported assertions, but must come forward with evidence that
would be sufficient to support a jury verdict is [his] favor”. Hines, Jr. v. Hillside Children’s
Center, 73 Supp.2d 308, 314 (W.D.N.Y. 1999) (internal alterations and quotations omitted).
Here, after having the benefit of discovery, McDowell does not point to any evidence in the
record that supports his assertion that he suffered any “adverse” consequence related to the delay
in receiving his performance evaluation. McDowell alleges in his Statement of Facts filed in
opposition to defendant’s motion for summary judgment that by the time he received his 2016
performance appraisal on July 27, 2017, he had “already missed out on promotional
opportunities with the Department of Homeland Security”. [136] at 18-19. He states further that
“[t]he job opportunities that I was interested in with the Department of Homeland Security
required current federal employees to submit their last two performance appraisals. If their last
two performance appraisals were not submitted their application would be deemed incomplete”.
Id. at 19.
McDowell does not, however, point to any piece of evidence in his exhibits, or
elsewhere in the record, that supports this statement. The email correspondence he refers to
(Exhibit 29, referencing [136-1] at 123-32), does not contain any reference to his attempts to
apply for a position with Homeland Security, nor even reference his interest in applying for other
federal positions. Nor does McDowell state that he raised this issue with any of the coworkers
with whom he spoke or emailed. None of the statements of coworkers that he attaches to both
his motion and his response to plaintiff’s motion mention this topic.
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This court considered a similar situation in Woods-Early v. Corning Incorporated,
2023 WL 4598358 (W.D.N.Y. 2023). There, the plaintiff alleged that her employer retaliated
against her in violation of Title VII by, in part, “delaying the finalization of her 2014
performance review”, which she contended was materially adverse because “it would be more
difficult for her to transfer to a new role”. Id. at *11. The court granted defendant’s motion for
summary judgment on this point:
“To be sure, excluding an employee from opportunities that
contribute significantly to the employee’s professional
advancement might well deter a reasonable employee from
complaining about discrimination. . . . But there is no evidence to
substantiate Plaintiff’s claim that the four-month delay interfered
with her search for a new role. Plaintiff never applied for any
positions within Corning in 2014 or 2015 . . . and she identifies no
opportunity that she missed due to the delay.”
Id. at *12.
Here, aside from McDowell’s own conclusory statements, there is no evidence in
the record to substantiate his claim that the delay in receiving his performance review interfered
with his search for a new role. “[A] party cannot create a triable issue of fact merely by stating
in an affidavit the very proposition they are trying to prove”. Hicks, 593 F.3d at 167. There is
no evidence of any actual job that was posted during the period of delay, or of the application
requirements of any such job. Nor is there evidence that the McDowell attempted to apply for
any specific position, or that his application was rejected because he did not submit his 2016
performance evaluation.
For these reasons, I do not believe that an objective, reasonable person would find
a seven-months-long delay in receiving a performance evaluation, while that employee was out
of work on sick leave, sufficiently significant that it would have “dissuaded a reasonable worker
from making or supporting a charge of discrimination”. Burlington Northern, 548 U.S. at 68; see
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also Witkowich v. Holder, 2010 WL 1328364, *8 (S.D.N.Y. 2010) (where a United States
Marshal’s long list of actions he claimed were retaliatory included that “he was not provided
with his annual performance review in a timely fashion”, the court concluded that “[n]one of the
acts submitted by plaintiff can be considered materially adverse, either individually or in
combination. They are not harmful to the point that they could well dissuade a reasonable
worker from making or supporting a charge of discrimination”).
Because I find that defendant is entitled to judgment as a matter of law on this
issue, I recommend that defendant’s motion for summary judgment be granted, and McDowell’s
motion denied, on this basis. However, even if I were to assume for purposes of this motion that
the delay in receiving his performance evaluation, and McDowell’s evidence, were sufficient to
satisfy his obligation to present prima facie evidence of an “adverse action”, defendant remains
entitled to summary judgment.
Once a plaintiff satisfies his burden to produce evidence of a prima facie case of
retaliation, he “creates a presumption of retaliation, which the defendant may rebut by
articulating a legitimate, non-retaliatory reason for the adverse employment action”. Chen, 805
F.3d at 70 (internal quotations omitted). Here, defendant articulated a legitimate, non-retaliatory
reason for the delay in completing McDowell’s 2016 performance review through the
Declaration of Grace L. Stringfellow, M.D., who was then the Chief of Staff for the Buffalo VA
and McDowell’s supervisor. See [124-32], ¶¶ 81-89, referring to the Stringfellow Declaration
[124-15]. Dr. Stringfellow stated that she was attempting at the time to follow the Buffalo VA’s
standard practice for conducting employee performance evaluations. [124-32], ¶¶81-84. This
process included obtaining a self-assessment from the employee, and then meeting with the
employee to discuss his or her evaluation. Id., ¶81. She explained further that this process was
delayed because McDowell did not timely submit his self-assessment, and thereafter, she was
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unable to meet with defendant because he was out of the office on sick leave. Id., ¶¶84-85. She
did, however, timely submit a “summary rating” for McDowell that resulted in McDowell
receiving a timely performance award. Id., ¶86; see also Plaintiff’s Opposition to Defendant’s
Motion for Summary Judgment [136] at 13. When Dr. Stringfellow was advised that McDowell
had requested in writing his 2016 performance review, the Buffalo VA provided it to him
approximately one month later. [124-5], ¶¶ 88-89.
Once a defendant provides such an explanation, “the presumption of retaliation
dissipates, and the plaintiff must prove that the desire to retaliate was the but-for cause of the
challenged employment action”. Chen, 805 F.3d at 70. McDowell states in his Reply in support
of his motion for summary judgment that the “significant delay” in providing his 2016 evaluation
despite his “repeated requests” “clearly constitute an adverse employment action which occurred
after his EEOC complaint, establishing a clear causal connection”. [140] at 3-4.
He states in his Opposition to Defendant’s Motion for Summary Judgment that, at
the time his performance award was processed in December 2016, “Stringfellow wants to change
my performance rating. However, once she identifies that I have already been paid an
outstanding performance award, she realizes this is not feasible. Stringfellow is now angry and
upset and wants revenge. As she stated previously, she does not want to be involved in another
EEOC claim. This fact was reported during the EEO investigation.” [136] at 13-14. He also
alleges that on January 19, 2017, Stringfellow “failed to respond to Plaintiff and gave him a
‘look of disgust’, when Plaintiff said, Good Morning”. [134], ¶21; see also [136] at 14.
However, McDowell cites no evidence that Stringfellow wanted to change his
performance rating, or that she was angry and wanted revenge. McDowell’s own conclusory
statements are not evidence. See Hicks, 593 F.3d at 167. Similarly, aside from his own
characterization of the nature of Stringfellow’s “look” in his direction on January 19, 2017,
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McDowell offers no evidence to support his claim that she felt or expressed “disgust” with or at
him.
That leaves McDowell’s assertion of temporal proximity as his only proof that
defendant’s “desire to retaliate was the but-for cause of the challenged employment action”.
Chen, 805 F.3d at 70. However, the Second Circuit “has long held that temporal proximity
between a protected complaint and an adverse employment action is insufficient to satisfy
plaintiff’s burden to bring forward some evidence of pretext”. Chen, 805 F.3d at 72 (internal
quotations omitted); see also El Sayed v. Hilton Hotels Corporation, 627 F.3d 931, 932 (2d Cir.
2010) (abrogated in part on other grounds by Nassar, supra) (“[t]he temporal proximity of events
may give rise to an inference of retaliation for the purposes of establishing a prima facie case of
retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy
appellant’s burden to bring forward some evidence of pretext”); Hale v. Vidal, 2023 WL
7211909, *1 (2d Cir.) (Summary Order) (“temporal proximity between [plaintiff’s] protected
activity and the [defendant’s] adverse actions, without more, is also insufficient to survive
summary judgment”); Hines v. Hillside Children’s Center, 73 F.Supp.2d 308, 324 (W.D.N.Y.
1999) (collecting cases).
Without more, McDowell has failed to demonstrate that he is entitled to judgment
as a matter of law on his retaliation claim, or that there is any issue of fact sufficient to survive
defendant’s motion for summary judgment. Therefore, for all these reasons, I recommend that
defendant’s motion for summary judgment be granted, and McDowell’s motion for summary
judgment be denied.
CONCLUSION
For these reasons, I recommend that defendant’s motion for summary judgment
[124] be granted, and McDowell’s motion for summary judgment [128] be denied. Unless
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ordered otherwise by District Judge John L. Sinatra, any objections to this Report and
Recommendation must be filed with the clerk of this court by October 16, 2025. Any requests
for extension of this deadline must be made to Judge Sinatra. A party who “fails to object timely
. . . waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838
F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local
Rules of Civil Procedure, written objections shall “specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for each
objection . . . supported by legal authority”, and must include “a written statement either
certifying that the objections do not raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply
with these provisions may result in the district judge’s refusal to consider the objections.
Dated: September 29, 2025
__/s/__Jeremiah J. McCarthy_________
JEREMIAH J. McCARTHY
United States Magistrate Judge
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