Sharon BABARINSA, Plaintiff-Appellant, v. KALEIDA HEALTH, Buffalo General Hospital, Defendant-Appellee, 622 F. App'x 36

SUMMARY ORDER Sharon Babarinsa appeals from the judgment of the United States District Court for the Western District of New York (Skretny, J.), granting

summary judgment in favor of defendant-appellee. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. “We review a district court’s, grant of

summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.2005). 1. Babarinsa chiefly contests the grant of

summary judgment dismissing her Title VII retaliation claims. Once a defendant articulates a legitimate non-retaliatory reason for an adverse employment action, the “presumption of retaliation” aiding a plaintiff “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 Univ. of N.Y., No. 14-1469, 805 F.3d 59, 70, 2015 WL 6499909, at *8 (2d Cir. Oct. 28, 2015) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013)).

Ba-barinsa has failed to present sufficient evidence for a reasonable jury to find that Kaleida Health’s reasons here are pretex-tual. First, as to the drop in Babarinsa’s charge assignments in May 2009, Kaleida Health presented uncontested evidence that the charging

schedule was generally equalized throughout the plaintiffs shift during this time period, and that several employees who did not complain received larger decreases in their assignments than Babarinsa. The undisputed record shows — and no reasonable jury could find otherwise — that the June 25, 2009 verbal warning to Babarinsa, and her temporary suspension from charge assignments, were precipitated by Babarinsa’s verbal altercation with another employee (while Baba-rinsa was serving as a charge nurse) in violation of Kaleida Health’s Standards of Personal Conduct Policy.

The record further demonstrates that, insofar as Baba-rinsa had fewer charge assignments in the months following the end of her suspension, they reflected either general variability in charging assignments or continued complaints against her. Indeed, Babarin-sa received a February 16, 2010 written warning that stemmed from her failure to provide pain medication as ordered and her violation of patient confidentiality and privacy rights.

Finally, there is no record evidence that the statement in Babarinsa’s 2010 annual assessment (on February 11, 2011) — that Babarinsa “ha[d] improved in communication skills while in charge”— was pretextual. J.A. 118. Babarinsa’s reliance on temporal proximity alone to show pretext is misplaced; “[w]e have long held that ‘temporal proximity’ between a protected complaint and an adverse employment action is ‘insufficient to satisfy [plaintiffs] burden to bring forward some evidence of pretext.’ ” Chen, 805 F.3d at 72, 2015 WL 6499909, at *9 (quoting El Sayed v.

Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.2010)) (alteration in original). Further, her reliance on data about charge hours is undermined by Ka-leida Health’s explanations for that data: not only that charge assignments, generally, reflected a variety of important administrative factors, but also that Babarinsa’s charging assignments, specifically, reflected various aforementioned disciplinary proceedings that began in June 2009. Thus, this data, standing alone, is not evidence of pretext. The district court correctly granted

summary judgment on Ba-barinsa’s retaliation claims. 2. With respect to Babarinsa’s Title VII discrimination claims: because her employer provided non-discriminatory reasons explaining both the distribution of charge assignments prior to June 2009 and the disciplinary action subsequently taken against Babarinsa, the presumption in Ba-barinsa’s favor established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “completely ‘drops out of the picture.’ ” James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir.2000) (quoting St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Babarinsa has not raised a material issue of fact as to whether these non-discriminatory reasons — the inherent variability in charge assignments, Babarinsa’s poor communication skills, and her violation of Kaleida Health’s Standards of Personal Conduct Policy — were pretextual. For the foregoing reasons, and finding no merit in Babarinsa’s other arguments, we hereby AFFIRM the judgment of the district court.