21-2150 Canady v. U of R/Strong Memorial Medical Center
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM- MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED- ERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of December, two thousand twenty-two.
Present: DEBRA ANN LIVINGSTON, Chief Judge, BARRINGTON D. PARKER, MICHAEL H. PARK, Circuit Judges. _____________________________________
MARK CANADY ,
Plaintiff-Appellant,
v. 21-2150
U OF R/STRONG MEMORIAL MEDICAL CENTER AND UNION 1199 SEIU,
Defendants-Appellees. _____________________________________
For Plaintiff-Appellant: MARK CANADY , pro se, Rochester, NY.
For Defendant-Appellee KATHERINE MCCLUNG , Bond, Schoeneck & King U of R/Strong Memorial: PLLC, Rochester, NY.
For Defendant-Appellee JONATHAN G. JOHNSEN, Creighton, Johnsen & Giroux, Union 1199 SEIU: Rochester, NY.
1 Appeal from a judgment of the United States District Court for the Western District of New
York (Larimer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Mark Canady (“Canady”), proceeding pro se, sued his former em-
ployer, the University of Rochester Strong Memorial Medical Center (the “Hospital”), and his
former union, 1199 SEIU (the “Union,” and together with the Hospital, the “Defendants”), for
retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a), in connection with his October 2020
termination. We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal, which we discuss only as necessary to explain our decision
to affirm.
The current lawsuit is Canady’s fifth Title VII suit against the Defendants, after having
unsuccessfully sued them for racial discrimination and retaliation in connection with prior disci-
plinary actions in 2013, 2014, 2015, and 2020. See Canady v. Union 1199, 253 F. Supp. 3d 547
(W.D.N.Y. 2017), aff’d sub. nom., Canady v. Univ. of Rochester, 736 F. App’x 259 (2d Cir. 2018);
Canady v. Union 1199/SEIU, 527 F. Supp. 3d 515 (W.D.N.Y. 2021). In the lawsuit immediately
antecedent to this one (the “2020 Action”), the district court denied Canady’s request for leave to
amend to assert the same claim he raises now—a retaliation claim premised on his termination—
because he had not alleged facts suggesting the Defendants were aware of the 2020 Action when
he was fired, or otherwise establishing a retaliatory motive, noting that the documents attached to
his filings established that he was fired for performance-related issues after having been disciplined
for other misconduct. See Canady v. Union 1199/SEIU, 527 F. Supp. 3d at 517.
Turning to the present case, Canady filed the operative complaint before the district court
2 issued its decision dismissing the 2020 Action with prejudice. In this action, Canady claims that
the Defendants retaliated against him by firing him and inadequately representing him in connec-
tion with his firing. The Defendants moved to dismiss, and in responding to this motion, Canady
included a request for leave to amend. The district court granted the Defendants’ motions to
dismiss for failure to state a claim, adopting the reasoning of its prior decision in the 2020 Action,
without addressing whether Canady should be permitted to amend his complaint. See Canady v.
U of R/Strong Mem’l Med. Ctr., No. 21 Civ. 6223, 2021 WL 2941133, at *1–2 (W.D.N.Y. July
13, 2021). Canady appealed.1
We review the dismissal of a complaint pursuant to Rule 12(b)(6) de novo. Chambers v.
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “To survive a motion to dismiss, a com-
plaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Although we construe pro se submissions “liberally . . . to
raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (emphasis and internal quotation marks omitted), a pro se complaint must
nevertheless contain “factual allegations sufficient to meet the plausibility requirement,” Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011).
Even liberally construed, we agree with the district court that Canady’s complaint did not
1 In addition to defending the judgment, the Hospital argues that we lack appellate juris- diction because the district court granted Canady’s timely motion for an extension of time to appeal in the absence of “excusable neglect or good cause.” Fed R. App. P. 4(a)(5)(A); 28 U.S.C. § 2107(c). Assuming that this is, indeed, a jurisdictional question that may be raised in the ab- sence of a cross appeal of the district court’s extension order, we perceive no abuse of discretion in the district court’s finding of “excusable neglect” under the circumstances of this case. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 362–63, 366 (2d Cir. 2003).
3 state a Title VII retaliation claim against the Hospital, which requires a plaintiff to plausibly allege
that the defendants took an adverse employment action against him “because” he opposed an un-
lawful employment practice. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir.
2015). The requisite causation “may be shown by direct evidence of retaliatory animus or inferred
through temporal proximity to the protected activity.” Lively v. WAFRA Inv. Advisory Grp., Inc.,
6 F.4th 293, 307 (2d Cir. 2021). The complaint alleges no facts supporting direct retaliatory ani-
mus. Nor can an inference of causation be made from the timing of events set forth in the com-
plaint. Canady alleged vaguely that the Defendants knew of his “complaint” when he was fired,
yet he failed to specify which complaint, or how the Defendants knew about it. His first three
lawsuits against the Defendants were resolved several years earlier—too far removed to suggest
retaliatory intent. See Canady v. Univ. of Rochester, 736 F. App’x at 261–62. With respect to
Free access — add to your briefcase to read the full text and ask questions with AI
21-2150 Canady v. U of R/Strong Memorial Medical Center
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM- MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED- ERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of December, two thousand twenty-two.
Present: DEBRA ANN LIVINGSTON, Chief Judge, BARRINGTON D. PARKER, MICHAEL H. PARK, Circuit Judges. _____________________________________
MARK CANADY ,
Plaintiff-Appellant,
v. 21-2150
U OF R/STRONG MEMORIAL MEDICAL CENTER AND UNION 1199 SEIU,
Defendants-Appellees. _____________________________________
For Plaintiff-Appellant: MARK CANADY , pro se, Rochester, NY.
For Defendant-Appellee KATHERINE MCCLUNG , Bond, Schoeneck & King U of R/Strong Memorial: PLLC, Rochester, NY.
For Defendant-Appellee JONATHAN G. JOHNSEN, Creighton, Johnsen & Giroux, Union 1199 SEIU: Rochester, NY.
1 Appeal from a judgment of the United States District Court for the Western District of New
York (Larimer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Mark Canady (“Canady”), proceeding pro se, sued his former em-
ployer, the University of Rochester Strong Memorial Medical Center (the “Hospital”), and his
former union, 1199 SEIU (the “Union,” and together with the Hospital, the “Defendants”), for
retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a), in connection with his October 2020
termination. We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal, which we discuss only as necessary to explain our decision
to affirm.
The current lawsuit is Canady’s fifth Title VII suit against the Defendants, after having
unsuccessfully sued them for racial discrimination and retaliation in connection with prior disci-
plinary actions in 2013, 2014, 2015, and 2020. See Canady v. Union 1199, 253 F. Supp. 3d 547
(W.D.N.Y. 2017), aff’d sub. nom., Canady v. Univ. of Rochester, 736 F. App’x 259 (2d Cir. 2018);
Canady v. Union 1199/SEIU, 527 F. Supp. 3d 515 (W.D.N.Y. 2021). In the lawsuit immediately
antecedent to this one (the “2020 Action”), the district court denied Canady’s request for leave to
amend to assert the same claim he raises now—a retaliation claim premised on his termination—
because he had not alleged facts suggesting the Defendants were aware of the 2020 Action when
he was fired, or otherwise establishing a retaliatory motive, noting that the documents attached to
his filings established that he was fired for performance-related issues after having been disciplined
for other misconduct. See Canady v. Union 1199/SEIU, 527 F. Supp. 3d at 517.
Turning to the present case, Canady filed the operative complaint before the district court
2 issued its decision dismissing the 2020 Action with prejudice. In this action, Canady claims that
the Defendants retaliated against him by firing him and inadequately representing him in connec-
tion with his firing. The Defendants moved to dismiss, and in responding to this motion, Canady
included a request for leave to amend. The district court granted the Defendants’ motions to
dismiss for failure to state a claim, adopting the reasoning of its prior decision in the 2020 Action,
without addressing whether Canady should be permitted to amend his complaint. See Canady v.
U of R/Strong Mem’l Med. Ctr., No. 21 Civ. 6223, 2021 WL 2941133, at *1–2 (W.D.N.Y. July
13, 2021). Canady appealed.1
We review the dismissal of a complaint pursuant to Rule 12(b)(6) de novo. Chambers v.
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “To survive a motion to dismiss, a com-
plaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Although we construe pro se submissions “liberally . . . to
raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (emphasis and internal quotation marks omitted), a pro se complaint must
nevertheless contain “factual allegations sufficient to meet the plausibility requirement,” Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011).
Even liberally construed, we agree with the district court that Canady’s complaint did not
1 In addition to defending the judgment, the Hospital argues that we lack appellate juris- diction because the district court granted Canady’s timely motion for an extension of time to appeal in the absence of “excusable neglect or good cause.” Fed R. App. P. 4(a)(5)(A); 28 U.S.C. § 2107(c). Assuming that this is, indeed, a jurisdictional question that may be raised in the ab- sence of a cross appeal of the district court’s extension order, we perceive no abuse of discretion in the district court’s finding of “excusable neglect” under the circumstances of this case. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 362–63, 366 (2d Cir. 2003).
3 state a Title VII retaliation claim against the Hospital, which requires a plaintiff to plausibly allege
that the defendants took an adverse employment action against him “because” he opposed an un-
lawful employment practice. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir.
2015). The requisite causation “may be shown by direct evidence of retaliatory animus or inferred
through temporal proximity to the protected activity.” Lively v. WAFRA Inv. Advisory Grp., Inc.,
6 F.4th 293, 307 (2d Cir. 2021). The complaint alleges no facts supporting direct retaliatory ani-
mus. Nor can an inference of causation be made from the timing of events set forth in the com-
plaint. Canady alleged vaguely that the Defendants knew of his “complaint” when he was fired,
yet he failed to specify which complaint, or how the Defendants knew about it. His first three
lawsuits against the Defendants were resolved several years earlier—too far removed to suggest
retaliatory intent. See Canady v. Univ. of Rochester, 736 F. App’x at 261–62. With respect to
the 2020 Action, as the district court noted, the docket reflected that summons were not issued
until five days after he was fired. See Canady v. Union 1199/SEIU, 527 F. Supp. 3d at 517. The
district court also noted that the papers attached to the complaint included a letter in which the
Hospital proffered a legitimate, non-retaliatory reason for Canady’s termination. See id.
Likewise, Canady has failed to state a claim against the Union for either Title VII retalia-
tion or breach of the duty of fair representation. As against an employer, to plead a retaliation
claim against a labor organization, “a plaintiff must show participation in protected activity known
to the defendant, an employment action disadvantaging the person engaged in the protected activ-
ity, and a causal connection between the protected activity and the adverse employment action.”
Yerdon v. Henry, 91 F.3d 370, 377 (2d Cir. 1996). But, similar to his retaliation claim against the
Hospital, Canady’s bare allegation that the Union was generally aware of unspecified complaints
against other Union members is insufficient to plead the requisite causal nexus between his
4 protected conduct and any adverse action the Union took against him. Moreover, Canady’s gen-
eralized allegations that the Union “fail[ed] to do investigations” and “never responded to [his]
concerns,” App’x 10, do not plausibly allege that the Union acted in a way that was “arbitrary,
discriminatory, or in bad faith,” as necessary to state a claim for breach of the duty of fair repre-
sentation. Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010) (citation omit-
ted).
The district court also did not err by denying Canady leave to amend, which request he
embedded in his opposition brief to the Defendants’ motion to dismiss. We review a district
court’s denial of leave to amend for abuse of discretion, unless “the denial of leave to amend is
based on a legal interpretation, such as a determination that amendment would be futile,” in which
case our review is de novo. Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015) (citation omitted).
Generally speaking, “[a] pro se complaint should not be dismissed without the Court’s granting
leave to amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013)
(internal quotation marks, citation, and alterations omitted).
Here, Canady previously sought to amend his complaint in the 2020 Action to assert the
same claims of retaliatory termination that form the basis of the present action. See Canady v. U
of R/Strong Mem’l Med. Ctr., 2021 WL 2941133, at *1. Even considering the additional facts
alleged in his opposition brief, Canady would still fail to state a plausible claim for retaliation
because he does not allege facts supporting an inference that the Defendants acted “because” of
the 2020 Action or any past complaint he raised concerning other Union members. Vega, 801
F.3d at 90. We cannot infer causation simply because Canady is pro se. See Darby v. Greenman,
14 F.4th 124, 130 (2d Cir. 2021) (explaining that pro se solicitude “may not supply essential
5 elements of the claim that were not initially pled” (citation omitted)). Canady never alleges when
he informed the Defendants of the 2020 Action. Further, Canady alleges that the Defendants re-
taliated against him even before he brought the 2020 Action. See Slattery v. Swiss Reinsurance
Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (“Where timing is the only basis for a claim of retalia-
tion, and gradual adverse job actions began well before the plaintiff had ever engaged in any pro-
tected activity, an inference of retaliation does not arise.”). Moreover, Canady’s allegations con-
cerning the Union’s motive to tarnish his reputation with false disciplinary charges is rendered
implausible by his admission that he engaged in the verbal altercation that ultimately led to his
termination. Thus, we conclude that amendment would be futile. 2
* * *
We have considered Canady’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
2 To the extent Canady seeks to add claims for race discrimination, any such amendment would be futile because he fails to allege facts supporting an inference that any of the Defendants’ conduct was mo- tivated, even in part, based on his race.