Nurchett BROWN, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Dennis M. Walcott, Chancellor of the New York City Department of Education, Defendants-Appellees.
No. 12-1926-cv.
United States Court of Appeals, Second Circuit.
March 11, 2013.
89-92
Starke characterizes the section containing the disputed term as a force majeure clause and argues that force majeure clauses can only excuse breach for unforeseeable circumstances. Neither conclusion is warranted. While the exclusions clause includes language that might also appear in a traditional force majeure clause—such as the exclusion for “acts of God“—it also includes terms that bear no relation to such clauses, such as those limiting the applicability of the Service Guarantee when no one is available at a shipment‘s destination to accept delivery. Moreover, even if the exclusions clause were a traditional force majeure clause, Starke‘s reliance on United States v. Brooks-Callaway Co., 318 U.S. 120, 63 S.Ct. 474, 87 L.Ed. 653 (1943), is misplaced because that case involved a force majeure clause that was expressly limited to “unforeseeable causes.” Id. at 120 n. 1, 63 S.Ct. 474.
Finally, Starke argues that the district court erred by failing to consider the terms of the contract listed on UPS‘s website and that those terms also render the contract ambiguous. Although we agree that the contract includes “the description of UPS services at ups.com,” nothing in those additional terms suffices to render the contract ambiguous when applied to the facts Starke pled in his complaint.
The district court was correct to conclude that the contract is unambiguous and does not authorize Starke to recover on the facts he has pled. We therefore need not reach UPS‘s additional argument that Starke may not sue because he is neither a party nor an intended third-party beneficiary under the contract.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Nurchett BROWN, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Dennis M. Walcott, Chancellor of the New York City Department of Education, Defendants-Appellees.**
Victoria Scalzo, Kristin M. Helmers, and Eric Eichenholtz, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.
PRESENT: B.D. PARKER, RAYMOND J. LOHIER, JR., Circuit Judges, JOHN G. KOELTL,* District Judge.
Plaintiff-appellant Nurchett Brown appeals from the District Court‘s grant of summary judgment as to Brown‘s discrimination, retaliation, and hostile work environment claims brought pursuant to the Age Discrimination in Employment Act,
I. Discrimination, Retaliation, and Hostile Work Environment Claims
We review de novo the District Court‘s grant of summary judgment, construing the evidence in the light most favorable to Brown and drawing all inferences in her favor. See Nagle v. Marron, 663 F.3d 100, 104-05 (2d Cir.2011). For substantially the reasons set forth in the District Court‘s order entered April 11, 2012, we conclude that summary judgment was appropriate.
First, the District Court correctly concluded that Brown‘s hostile work environment claim was time-barred. No act contributing to the allegedly hostile work environment at M.S. 50 occurred within 300 days of Brown‘s complaint to the Equal Employment Opportunity Commission. See
Second, even assuming that Brown made out a prima facie case of discrimination with regard to her termination, she failed to present evidence that the legitimate, nondiscriminatory reason articulated by the New York City Department of Education (the “DOE“)—that she no longer qualified for an H-1B visa—was a pretext for discrimination. Even if Brown were correct that the DOE erred in concluding that she was ineligible for an H-1B visa while on unpaid suspension, the record is devoid of evidence indicating that that reason was a pretext for discrimination rather than simply a good faith mistake. See St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
Similarly, Brown‘s retaliation claims fail because there is no admissible record evidence of a causal connection between her alleged 2006 harassment charges concerning Ms. Jamison and her termination in 2008 by Mr. Ianniello. Even if there were such evidence, as stated above, the DOE has proffered a legitimate reason for its termination decision, which Brown has not rebutted.
Finally, keeping in mind that we should undertake an “independent liberal” analysis of Brown‘s NYCHRL claims, Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 936 N.Y.S.2d 112, 116 (1st Dep‘t 2011); see Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.2009), our review of
II. Subpoenas
The District Court quashed two of Brown‘s subpoenas for the depositions of DOE witnesses because they were untimely. We review that decision for abuse of discretion. See Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 79 (2d Cir.2012). On August 12, 2011, the District Court set a discovery cut-off date of December 15, 2011. On December 21, 2011, the court extended the discovery period by two months, to February 16, 2012, and stated that there would be no further extensions. Brown waited until approximately thirteen days after the February cut-off date to issue deposition subpoenas to defendants’ witnesses, and Brown has provided no explanation for the delay. Nor did Brown raise any alleged discovery problems with the District Court at the pretrial conference at the close of discovery. Accordingly, the District Court did not abuse its discretion in quashing the subpoenas.
We have considered Brown‘s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.