United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER UNITED STATES DISTRICT JUDGE
Plaintiff Cory Marcinuk (“Marcinuk”) has filed this lawsuit against Jacob J. Lew (“Lew”) in his official capacity as Secretary of the Treasury, alleging that his former employer, the Internal Revenue Service (“IRS”), violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), by failing to rehire him in 2011 in retaliation for filing an Equal Employment Opportunity (“EEO”) complaint. D. 1. Marcinuk has now moved for summary judgment, D. 60, and Lew has cross-moved for summary judgment, D. 63. For the reasons stated below, the Court DENIES Marcinuk’s motion and ALLOWS Lew’s motion.
II. Standard of Review
The Court grants summary judgment where there is no genuine dispute on any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” García-González v. Puig-Morales, 761 F.3d 81, 87 (1st Cir. 2014) (quoting Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 36 (1st Cir. 2014)) (internal quotation marks omitted). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Rosciti v. Ins. Co. of Pennsylvania, 659 F.3d 92, 96 (1st Cir. 2011). Once that burden is met, the non-moving party may not rest on the allegations or denials in his pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must, with respect to each issue on which [he] would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in [his] favor.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court “view[s] the record in the light most favorable” to the non-moving party, “drawing reasonable inferences” in his favor. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). “Conclusory allegations, improbable inferences, and unsupported speculation, ” however, are “insufficient to establish a genuine dispute of fact.” Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st Cir. 2013) (citation and internal quotation mark omitted). “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require [the Court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int’l Grp., Inc. v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).
III. Factual Background
The following facts are drawn from the parties’ statements of material facts, D. 61, D. 64, and unless otherwise noted, are undisputed.
Marcinuk was a full-time IRS employee from January 1997 until November 2007 as a contact representative. D. 64 at 2. In July 2001, Marcinuk filed a physical disability discrimination EEO complaint. Id. In July 2003, an EEO action formally opened. Id. The matter was resolved in the IRS’s favor in September 2004 and closed after an appeal by Marcinuk in March 2006. Id. at 2-3. In November 2007, the IRS terminated Marcinuk. Id. at 4. In August 2011, the IRS opened a contact representative position and Marcinuk applied. Id.; D. 61 ¶¶ 1-2. In October 2011, the IRS interviewed Marcinuk by phone. D. 64 at 4. He received a Superior Qualified rating, which placed him in a category of candidates given first consideration. Id. In December 2011, the IRS informed Marcinuk that another candidate was hired for the position. Id.
IV. Procedural History
Marcinuk filed this lawsuit on September 27, 2013. D. 1. On December 30, 2014, the Court partially granted Lew’s motion to dismiss under Fed.R.Civ.P. 12(b)(6). D. 41. On October 14, 2015, Marcinuk moved for summary judgment. D. 60. On November 5, 2015, Lew cross-moved for summary judgment. D. 63. On December 9, 2015, the Court heard the parties on their motions and took the matters under advisement. D. 66.
1. Marcinuk Cannot Establish a Prima Facie Case on Causation
To make a prima facie showing of Title VII retaliation, the plaintiff must show “that [he] engaged in protected conduct, that [he] suffered an adverse employment action, and that a causal nexus exists between the protected activity and the adverse action.” Ponte v. Steelcase Inc., 741 F.3d 310, 321 (1st Cir. 2014). Because neither party disputes the first two prongs, whether Marcinuk has established a prima facie case turns on the existence of a causal nexus between Marcinuk’s alleged protected action and the IRS’s alleged adverse action.
“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test” for Title VII discrimination claims. Univ. of TexasSw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2533 (2013). A plaintiff’s retaliation claim thus fails unless the plaintiff can show “that the desire to retaliate was the but-for cause of the challenged employment action.” Id. at 2528; see Maldonado-Gonzalez v. Puerto Rico Police, No. 12-cv-1088-PAD, 2015 WL 3900225, at *8 (D.P.R. June 25, 2015) (granting summary judgment for the defendant because there was ...