Carr v. New York City Transit Authority

22-792-cv
Carr v. New York City Transit Authority
United States Court of Appeals
for the Second Circuit
August Term 2022
No. 22-792-cv
JENNIFER B ERKELEY C ARR ,
Plaintiff-Appellant,
v.
NEW Y ORK C ITY TRANSIT A UTHORITY ,
MARVA B ROWN, AND D AVID C HAN,
Defendants-Appellees.
On Appeal from the United States District Court
for the Southern District of New York
A RGUED: MAY 18, 2023
D ECIDED: A UGUST 7, 2023

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Before: POOLER , PARKER , AND NATHAN, Circuit Judges.
Plaintiff-Appellant Jennifer Berkeley Carr appeals from a
judgment of the United States District Court for the Southern District
of New York (Broderick, J.) dismissing her claims of age, race, and
gender discrimination and retaliation under the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seq., Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866,
42 U.S.C. § 1981.
On appeal Carr asserts that the district court applied an
incorrect legal standard to her retaliation claim and that it erroneously
concluded that she had failed to demonstrate that Defendants-
Appellees’ race neutral explanations for not selecting her for two
internal promotions were pretextual. First, we hold that Carr has not
demonstrated that Defendants-Appellees’ explanations for her non-
promotions were pretextual. Second, we hold that although the
district court applied an incorrect standard to her retaliatory hostile
work environment claim, Carr has nevertheless failed to make out a
prima facie case of retaliation and did not demonstrate that her
employer’s non-retaliatory explanations were pretextual. We
therefore AFFIRM the judgment of the district court.
G REGORY G. SMITH , (Janet J. Lennon, on the brief), Law
Office of Gregory Smith, Brooklyn, NY, for Plaintiff-
Appellant.
MARIEL A. THOMPSON, Executive Agency Counsel New
York City Transit Authority, New York, NY, for
Defendants-Appellees.

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PARKER , Circuit Judge: 1
Jennifer Berkeley Carr appeals from a judgment of the United 2
States District Court for the Southern District of New York (Broderick, 3
J.). The district court granted the motion of the New York City Transit 4
Authority, Marva Brown, and David Chan (collectively, “NYCTA”) 5
for summary judgment and dismissed Carr’s claims of age, race, and 6
gender discrimination and retaliation under the Age Discrimination 7
in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., Title VII of the 8
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights 9
Act of 1866, 42 U.S.C. § 1981. 10
On appeal, Carr contends that the district court applied an 11
incorrect legal standard to her retaliation claim and that it erroneously 12
concluded that she had failed to demonstrate that the NYCTA’s race 13
neutral explanations for its failure to promote her were pretextual. 14
First, we hold that Carr has not demonstrated that the NYCTA’s 15
explanations for her two non-promotions were pretextual. Next, we 16
conclude that although the district court applied an incorrect 17
standard to her retaliatory hostile work environment claim, Carr has 18
nevertheless failed to make out a prima facie case of retaliation or 19
demonstrate that the NYCTA’s explanations for its actions were 20
pretextual. We therefore AFFIRM the judgment of the district court. 21
22
BACKGROUND 23
Carr, an “African-American female of Caribbean descent” born 24
in 1955, worked for the New York City Transit Authority (the “Transit 25
Authority”) from 2000 to 2022. Joint App’x at 1103 ¶ 4. Carr holds a 26
bachelor’s degree in economics and a master’s degree in public 27
administration. During the relevant period, Carr worked as a director 28
in the Transit Authority’s Capital Programs Department with the title 29
Director of Telecommunications and Systems, Capital Programs. 30

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Capital Programs was led by Appellee Marva Brown, also an 1
“African-American female of Caribbean descent.” Joint App’x at 1104 2
¶ 5. In 2013 and 2014, Carr applied for two senior director positions 3
in the department, but after an application process Brown ultimately 4
selected a younger non-Black man to fill each role. The application 5
process for both positions included an interview with a panel of three 6
Transit Authority employees. The first promotion that Carr applied 7
for was to the position of Senior Director, Program Management and 8
Oversight. That promotion went to Joseph DiLorenzo, a white man in 9
his early 50s who had worked at the Transit Authority since 1989 and 10
had a technical background in architecture. The second promotion 11
that she applied for was to the position of Senior Director, Program 12
Management & Analysis. That promotion was given to David Chan. 13
Chan, a 55-year-old Asian man, had worked at the Transit Authority 14
since 1987 and had a background in electrical engineering and 15
business administration. 16
Carr does not allege that either man promoted was unqualified. 17
It is uncontested that both men had worked at the Transit Authority 18
longer than Carr and had technical backgrounds that Carr lacked. 19
What is more, one of the interviewers for the second promotion 20
testified that Chan interviewed particularly well, and that Carr was 21
openly hostile toward Brown in her interview. After receiving the 22
promotion, Chan became Carr’s supervisor. 23
In September 2014, after failing to receive the two promotions 24
she had sought, Carr filed a complaint with the Transit Authority’s 25
Equal Employment Opportunity Office. In May 2015, she filed a 26
Charge of Discrimination with the United States Equal Employment 27
Opportunity Commission. After receiving a right-to-sue letter, Carr 28
initiated this lawsuit in December 2016. In her amended complaint, 29
she alleged that the NYCTA discriminated against her on the basis of 30

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her age, gender, and race by denying her the promotions and that it 1
discriminated against her by creating a hostile work environment 2
based on her age.1 29 U.S.C. § 621 et seq.; 42 U.S.C. § 2000e-2; 42 U.S.C. 3
§ 1981. Carr also alleged that the NYCTA violated the ADEA, Title 4
VII, and Section 1981 by creating a hostile work environment in 5
retaliation for her complaints of discrimination. 29 U.S.C. § 626 et seq.; 6
42 U.S.C. § 2000e-3; 42 U.S.C. § 1981. 7
Carr alleges that after she began to report discrimination in 8
September 2014, her relationships with her supervisors and her 9
performance evaluations deteriorated, which she attributes to 10
retaliation. Among other things, Carr asserts that Chan was 11
disrespectful and hostile to her in emails; that Chan assigned her 12
increased job responsibilities including responsibility for Elevator 13
and Escalator Communications, compiling a new Employee Training 14
Manual, and completing various other reports; that Chan threatened 15
to cancel her vacation time if she did not complete her projects; and 16
that analysts who worked under her were removed. 17
Despite these conflicts, Carr received “Good” performance 18
reviews in 2014 and 2015, a decline from her previous “Excellent” 19
ratings, but a rating that did not affect her compensation or position. 20
In both her 2016 and 2017 annual reviews, however, Carr received a 21
“Needs Improvement” rating that prevented her from receiving a 22
wage increase. Carr retired in 2022. She contends that her 23
mistreatment, including the increased workload and the negative 24
evaluations, was in retaliation to her complaints of discrimination. In 25
1 Carr does not challenge the dismissal of her standalone claim for a
hostile work environment under the ADEA. We therefore do not address
that claim. See Jackson v. Fed. Express, 766 F.3d 189, 194–95 (2d Cir. 2014).
To the extent Carr also intended to challenge the denial of her motion for
Judge Vernon S. Broderick’s recusal, she waived this issue by failing to
brief it. Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009).

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contrast, Chan contended in summary judgment proceedings that 1
Carr was treated like any other employee and that the negative 2
evaluations were appropriate because of problems with the 3
completeness and timeliness of her work. 4
The NYCTA moved for summary judgment and the district 5
court granted it. The district court first held that although Carr had 6
made out a prima facie case of a discriminatory non-promotion, she 7
had failed to demonstrate that the reasons the NYCTA provided for 8
promoting DiLorenzo and Chan were pretextual. Carr v. N.Y.C. 9
Transit Auth., No. 16-cv-9957 (VSB), 2022 WL 824367, at *9–12 10
(S.D.N.Y. Mar. 18, 2022). The district court noted that Carr had failed 11
to identify any inconsistencies in the hiring criteria and concluded 12
that she had relied on “speculation alone” to support her 13
discrimination claim. Id. at *12 (quotation marks omitted). 14
The district court then analyzed Carr’s retaliation claims and 15
found that she had not made out a prima facie case because she failed 16
to provide admissible evidence tending to show the alleged 17
retaliatory actions, such as the “Needs Improvement” performance 18
reviews, were caused by her complaints of discrimination or that the 19
retaliation against her was “sufficiently severe or pervasive to alter 20
the conditions of [her] employment” and therefore she could not 21
make out a prima facie case for a retaliatory hostile work 22
environment. Id. at *14–15 (quotation marks omitted). 23
Finally, the district court concluded that, even assuming that 24
Carr had made out a prima facie case, she had failed to demonstrate 25
that the NYCTA’s legitimate, non-discriminatory reasons for the 26
alleged retaliatory actions were pretextual. Id. at *15. The district court 27
concluded that “[t]here is ample record evidence to support 28
Defendants’ stated belief that Plaintiff was not doing her job 29
adequately and was unpleasant and difficult to work with, thus 30

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warranting the negative performance reviews” and that Carr had put 1
forward no evidence of pretext. Id. Accordingly, the district court 2
granted the NYCTA’s motion for summary judgment. Carr then 3
appealed to this Court. 4
5
DISCUSSION 6
We review the district court’s grant of summary judgment de 7
novo. See Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 386 (2d Cir. 2020). 8
“In evaluating such motions, the district court must resolve any 9
doubts and ambiguities and draw all reasonable inferences in favor 10
of the nonmoving party.” Id. “Summary judgment is required if there 11
is no genuine dispute as to any material fact and the movant is 12
entitled to judgment as a matter of law.” Covington Specialty Ins. Co. v. 13
Indian Lookout Country Club, Inc., 62 F.4th 748, 752 (2d Cir. 2023) 14
(internal quotation marks omitted). 15
16
I. Discrimination Claims 17
Carr asserts that age, race, and gender discrimination 18
motivated the decision not to select her for senior director positions. 19
Discrimination claims under Title VII, the ADEA, and Section 1981 20
are analyzed under the McDonnell Douglas burden-shifting 21
framework. See Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 22
119, 129 (2d Cir. 2012); Brown v. City of Syracuse, 673 F.3d 141, 150 (2d 23
Cir. 2012). Under this familiar framework, “once a plaintiff has 24
established a prima facie case of discrimination, the burden shifts to 25
the employer to articulate some legitimate, nondiscriminatory reason 26
for the employer’s action against the employee. If the employer does 27
so, then the burden shifts back to the employee to show that the 28
employer’s articulated reason is pretext for discrimination.” Truitt v. 29
Salisbury Bank & Tr. Co., 52 F.4th 80, 86–87 (2d Cir. 2022) (cleaned up). 30

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The plaintiff bears “the ultimate burden of persuading the court that 1
she has been the victim of intentional discrimination.” Tex. Dep’t of 2
Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981). 3
The district court concluded, and the parties do not dispute, 4
that Carr established a prima facie case of discrimination on the basis 5
of race, sex, and age and that the defendants proffered a non- 6
discriminatory reason for not promoting her – that the two younger 7
men who Brown hired instead of Carr had worked at the Transit 8
Authority longer, had technical backgrounds she lacked, and 9
interviewed better. See Carr, 2022 WL 824367, at *9–10. The dispute is 10
over the third step: pretext. 11
As proof of pretext, Carr points to perceived inconsistencies in 12
the hiring criteria and changes to the hiring process, such as that the 13
original job descriptions did not specify a technical background was 14
required and the panel of interviewers changed between the first and 15
second openings she applied for. The district court concluded that no 16
reasonable juror could find that the reasons the NYCTA provided for 17
selecting the other candidates for promotions were pretextual. The 18
district court observed that there was nothing inconsistent about the 19
NYCTA’s explanations for why DiLorenzo and Chan were promoted 20
over Carr. Id. at *12. 21
We agree. The NYCTA adduced evidence that DiLorenzo or 22
Chan were equally, if not more, qualified for the positions than Carr, 23
and there is no allegation that any impermissible promotion criteria 24
were used. See Burdine, 450 U.S. at 259 (“[T]he employer has discretion 25
to choose among equally qualified candidates, provided the decision 26
is not based upon unlawful criteria.”). While “entirely ignor[ing]” 27
explicit hiring criteria or an “unprecedented” departure from an 28
employer’s established hiring practice can show pretext, Carr's 29
allegations regarding minor variations in the hiring process and the 30

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emphasis on the other candidates’ technical backgrounds are not the 1
sorts of “departures from procedural regularity” that could allow a 2
jury to infer pretext. Stern v. Trs. of Columbia Univ., 131 F.3d 305, 310, 3
314 (2d Cir. 1997) (quotation omitted). Where, as here, “an employer’s 4
explanation, offered in clear and specific terms, is reasonably 5
attributable to an honest . . . evaluation of qualifications, no inference 6
of discrimination can be drawn.” Byrnie v. Town of Cromwell, Bd. of 7
Educ., 243 F.3d 93, 105 (2d Cir. 2001) (cleaned up). We therefore affirm 8
the district court’s grant of summary judgment on Carr’s 9
discrimination claim. 10
11
II. Retaliation Claims 12
Carr also claims that she was retaliated against for complaining 13
that Brown’s promotion decisions were discriminatory. Although 14
retaliation claims under Title VII are governed by 42 U.S.C. § 2000e-3, 15
rather than § 2000e-2, which governs discrimination claims, the 16
McDonnell Douglas framework applies to retaliation claims, whether 17
brought under the ADEA, Title VII, or Section 1981. See Davis-Garett 18
v. Urb. Outfitters, Inc., 921 F.3d 30, 42–43 (2d Cir. 2019); Hicks v. Baines, 19
593 F.3d 159, 164 (2d Cir. 2010). The specific requirements for a prima 20
facie case of retaliation were set forth in Burlington Northern & Santa 21
Fe Railway Company v. White, 548 U.S. 53 (2006) (“Burlington 22
Northern”). See p. 13 infra. As in the discrimination context, a 23
defendant may rebut a prima facie showing of retaliation by 24
providing a legitimate, non-retaliatory reason for the allegedly 25
retaliatory action. See Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 26
2015). Then “the presumption of retaliation dissipates, and the 27
plaintiff must prove that the desire to retaliate was the but-for cause 28
of the challenged employment action.” Id. (cleaned up). 29

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In Burlington Northern, the Supreme Court considered the level 1
of harm required to establish a claim of retaliation. The Court held 2
that no matter the theory of retaliation, to satisfy the third element of 3
the prima facie case a plaintiff need only show that the employer’s 4
retaliatory actions, considered either singularly or in the aggregate, 5
were “materially adverse.” Id. at 68. Given that standard, we hold that 6
no reasonable juror could conclude that Carr has suffered material 7
adverse retaliatory actions. 8
In Burlington Northern, a railroad employee, White, claimed 9
that she was retaliated against after successfully raising gender 10
discrimination concerns. Burlington Northern, 548 U.S. at 58. The 11
alleged retaliation consisted of, among other things, White’s 12
reassignment from forklift duty to “track laborer tasks,” which were 13
more arduous. Id. The Supreme Court granted certiorari to resolve a 14
circuit split regarding “whether the challenged action has to be 15
employment or workplace related and about how harmful that action 16
must be to constitute retaliation.” Id. at 60–61. 17
Burlington Northern focused on the difference between two 18
sections of Title VII: its antidiscrimination provision, 42 U.S.C. § 19
2000e-2, and its antiretaliation provision, 42 U.S.C. § 2000e-3. Title 20
VII’s antidiscrimination provision makes it unlawful for an employer 21
“to fail or refuse to hire or to discharge any individual, or otherwise 22
to discriminate against any individual with respect to his 23
compensation, terms, conditions, or privileges of employment, 24
because of such individual’s race, color, religion, sex, or national 25
origin.” 42 U.S.C. § 2000e-2(a)(1). The antiretaliation provision bars 26
actions that “discriminate against” an employee “because he has 27
made a charge, testified, assisted, or participated in any manner in an 28
investigation, proceeding, or hearing under this subchapter.” 42 29
U.S.C. § 2000e-3(a). The Court noted that Title VII’s antiretaliation 30

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provision prohibits discrimination more broadly than its substantive 1
antidiscrimination provision, which prohibits only actions affecting 2
certain enumerated aspects of employment, and, consequently, held 3
that the two provisions were not coterminous and should be 4
interpreted differently. Burlington Northern, 548 U.S. at 62–63 (citing 5
42 U.S.C. § 2000e-2(a)). The Court went on to hold that “[t]he scope of 6
the antiretaliation provision extends beyond workplace-related or 7
employment-related retaliatory acts and harm.” Id. at 67. 8
The Court then defined the level of harm necessary for an 9
alleged retaliatory action to support a prima facie case of retaliation. 10
It held that “a plaintiff must show that a reasonable employee would 11
have found the challenged action materially adverse, which in this 12
context means it well might have dissuaded a reasonable worker from 13
making or supporting a charge of discrimination.” Id. at 68 (internal 14
quotation marks omitted). The Court rejected the reasoning of some 15
circuits, which required that a retaliation plaintiff show a “materially 16
adverse change in the terms and conditions of employment,” just like 17
in the substantive discrimination context. Id. at 60 (internal quotation 18
marks omitted). However, the Court emphasized that to be 19
“materially adverse,” an action must cause more than “trivial harms” 20
because “[a]n employee’s decision to report discriminatory behavior 21
cannot immunize that employee from those petty slights or minor 22
annoyances that often take place at work and that all employees 23
experience.” Id. at 68. Harms such as these were not actionable, it held, 24
because they would not deter reasonable employees from making 25
complaints of discrimination. Id. Applying this holding to the 26
retaliation alleged by White, the Court held that her reassignment was 27
a materially adverse action. Id. at 70–71. 28
As mentioned above, Burlington Northern stands for the 29
proposition that the definition of “adverse action” in the Title VII 30

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antiretaliation context is broader than in the antidiscrimination 1
context. Consequently, there are adverse actions that would suffice to 2
make out a prima facie case for retaliation because they are 3
“materially adverse” but would be insufficient to make out a prima 4
facie case for discrimination because they did not alter the terms and 5
conditions of employment. Burlington Northern therefore left us with 6
a single standard that applies to all retaliation claims: a plaintiff need 7
only show that the retaliatory actions she was subjected to were 8
materially adverse, meaning that the actions “well might have 9
dissuaded a reasonable worker from making or supporting a charge 10
of discrimination.” Id. at 68. 11
Following Burlington Northern, this Court noted that “the harm 12
element of a retaliation claim is not to be analyzed in the same way as 13
the harm from an alleged substantive act of discrimination,” Davis- 14
Garett, 921 F.3d at 43, and that “[p]rior decisions of this Circuit that 15
limit unlawful retaliation to actions that affect the terms and 16
conditions of employment, no longer represent the state of the law,” 17
Hicks, 593 F.3d at 165 (internal citations omitted). Recently, the Fourth 18
Circuit correctly applied Burlington Northern to a retaliatory hostile 19
work environment claim in Laurent-Workman v. Wormuth, 54 F.4th 201 20
(4th Cir. 2022). It held that to make out a prima facie case of a 21
retaliatory hostile work environment, a plaintiff must allege that the 22
retaliatory actions would “dissuade a reasonable worker from 23
making or supporting a charge of discrimination.” Laurent-Workman, 24
54 F.4th at 218 (quoting Burlington Northern, 548 U.S. at 68). It then 25
concluded that “the consistent (even if not constant) conduct Laurent- 26
Workman alleges plausibly qualifies as materially adverse” and that 27
she “has adequately pled that a reasonable employee may have been 28
dissuaded from following through with her complaints.” Id. We find 29
this decision persuasive because it follows the standard set forth in 30

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Burlington Northern and aligns the standard for retaliatory hostile 1
work environment claims with the broader retaliation standard. 2
Applying Burlington Northern’s unified standard, we hold that 3
to satisfy the third element of a prima facie retaliation case, a plaintiff 4
need only show that the allegedly retaliatory actions, taken either 5
singularly or in the aggregate, were “materially adverse.” A claim of 6
“retaliatory hostile work environment” must therefore be treated 7
identically to a claim that an employer took multiple retaliatory 8
actions that were, in the aggregate, “materially adverse.” 9
Accordingly, we hold that to establish a prima facie case of 10
retaliation, a plaintiff must demonstrate that (1) she engaged in 11
protected activity, (2) the defendant was aware of that activity, (3) she 12
was subjected to a retaliatory action, or a series of retaliatory actions, 13
that were materially adverse, and (4) there was a causal connection 14
between the protected activity and the materially adverse action or 15
actions.2 As we have noted, under Burlington Northern, a “materially 16
adverse” action is one that “well might have dissuaded a reasonable 17
worker from making or supporting a charge of discrimination.” 548 18
U.S. at 68 (quotation marks omitted). 19
On appeal, Carr primarily argues that she was subjected to a 20
retaliatory hostile work environment, and that the district court erred 21
by using the incorrect standard in concluding that the NYCTA’s 22
treatment of her, in the aggregate, was not materially adverse. The 23
NYCTA counters that Carr must make the same showing as she 24
would to make out a prima facie case in a discriminatory hostile work 25
environment claim, i.e., that she must show the retaliatory actions 26
were sufficiently severe and pervasive that they altered the terms and 27
2 Although it is not relevant to this case, this definition acknowledges
Burlington Northern’s holding that one can be retaliated against by actions
taken outside of the workplace. 548 U.S. at 67.

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conditions of her employment. See Williams v. N.Y. City Hous. Auth., 1
61 F.4th 55, 68–69 (2d Cir. 2023) (setting out the standard in a 2
discriminatory hostile work environment case). The district court 3
appeared to accept the NYCTA’s argument and applied the 4
standalone hostile work environment standard to Carr’s claim. Carr, 5
2022 WL 824367, at *14. As explained above, we disagree. 6
Although the NYCTA’s test for a retaliatory hostile work 7
environment was not fully consistent with Burlington Northern, we 8
nevertheless conclude that Carr failed to make out a prima facie case 9
because the allegedly retaliatory actions were not materially adverse. 10
Carr argues that her diminishing performance ratings, not having 11
analysts reporting directly to her, being assigned additional projects, 12
and Chan’s hostile tone in emails, together constitute unlawful 13
retaliation. However, the alleged retaliatory actions were the result of 14
generally applicable workplace policies and Carr has not adduced 15
evidence that these policies were applied to her and not others. We 16
have held that absent allegations of more direct hostile conduct, a 17
reasonable employee would not be dissuaded from taking protected 18
action simply because they are subject to the same policies as other 19
employees. Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 20
568, 570-71 (2d Cir. 2011). We conclude that these complaints, even 21
when taken in the aggregate, would not dissuade a reasonable 22
employee from lodging a complaint and therefore, they were not 23
materially adverse. 24

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Our Court,3 and district courts in this Circuit,4 have on occasion 1
failed to apply the Burlington Northern standard faithfully. As noted, 2
when analyzing a retaliation claim, the sole inquiry regarding the 3
3 Duplan v. City of New York, 888 F.3d 612, 627 (2d Cir. 2018) (applying,
without analysis, the “severe and pervasive” standard from a
discriminatory hostile work environment claim to a retaliatory hostile work
environment claim).
4 Compare Stevenson v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 1:21-
cv-355 (GWC), 2022 WL 179768, at *6 (W.D.N.Y. Jan. 20, 2022) (“alleging a
retaliatory hostile environment is an alternative way to establish that
element of a retaliation claim. . . . Here, Plaintiffs have alleged multiple acts
. . . that, when considered together, plausibly indicate a retaliatory hostile
environment that constitutes adverse employment action.”) (internal
quotation marks omitted), with Bacchus v. N.Y. City Dep't of Educ., 137 F.
Supp. 3d 214, 244 (E.D.N.Y. 2015) (“To establish a claim for retaliatory
hostile work environment, a plaintiff must satisfy the same standard that is
applied generally to hostile work environment claims regarding the
severity of the alleged conduct.”) (quotation marks omitted), Villar v. City
of New York, 135 F. Supp. 3d 105, 137 (S.D.N.Y. 2015) (“To establish that a
retaliatory hostile work environment constitutes a materially adverse
change that might dissuade a reasonable worker from reporting activity
prohibited by Title VII, a plaintiff must satisfy the same standard that
governs hostile workplace claims by showing that the incidents of
harassment following complaints were sufficiently continuous and
concerted to have altered the conditions of his employment.”), Senior v.
Conn. Workers’ Comp. Comm'n, Third Dist., No. 3:17-cv-1205 (JBA), 2018 WL
4288643, at *4 (D. Conn. Sept. 7, 2018) (“To establish that a retaliatory hostile
work environment constitutes a materially adverse change that might
dissuade a reasonable worker from reporting activity prohibited by Title
VII, a plaintiff must satisfy the same standard that governs hostile
workplace claims”), and Colton v. N.Y. Div. of State Police, No. 5:14-cv-00801
(TJM), 2017 WL 5508911, at *13 (N.D.N.Y. Feb. 8, 2017) (“If a plaintiff shows
a causal connection between the protected activity and the adverse conduct,
the same ‘severe or pervasive’ standard [as applies in a gender-based
hostile work environment claim] applies to a retaliatory hostile work
environment claim.”) (quotation marks omitted).

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third element of the prima facie case is whether the allegedly 1
retaliatory actions were materially adverse. Even if a plaintiff labels 2
her retaliation claim as a “retaliatory hostile work environment” 3
claim, courts should not consider whether the allegedly retaliatory 4
actions meet the higher “severe and pervasive” standard. All that is 5
relevant is whether the actions, taken in the aggregate, are materially 6
adverse and would dissuade a reasonable employee from making a 7
complaint of discrimination. 8
To be sure, Carr’s “Needs Improvement” performance reviews 9
in 2016 and 2017, which made her ineligible for raises, constitute 10
materially adverse actions on their own. But even assuming arguendo 11
that Carr could establish that her complaints of discrimination caused 12
the poor performance evaluations, the district court correctly 13
concluded that Carr’s claim would fail at the third step of the 14
McDonnell Douglas burden-shifting framework because she cannot 15
establish pretext. Carr, 2022 WL 824367, at *15. 16
The NYCTA’s evidence supporting summary judgment 17
established that Carr received negative performance evaluations 18
because she was not adequately or timely completing her duties and 19
had become increasingly challenging to work with. Carr has not 20
rebutted this showing with evidence demonstrating that the reasons 21
the NYCTA provided for the poor performance reviews were 22
pretextual. Instead, she argues that the performance reviews must 23
have been retaliatory due to their temporal proximity to her 24
complaints. But she offers nothing more to establish causation and we 25
have been clear that temporal proximity “alone is insufficient to 26
defeat summary judgment at the pretext stage.” Kwan v. Andalex Grp. 27
LLC, 737 F.3d 834, 847 (2d Cir. 2013). Absent other evidence, no 28
factfinder could reasonably determine that Carr’s protected activities 29

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were the but-for cause of her negative evaluations. We therefore 1
affirm the district court’s grant of summary judgment on this claim. 2
3
III. Conclusion 4
For the foregoing reasons, we AFFIRM the judgment of the 5
district court. 6

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