Paul DESIR, Plaintiff-Appellant, v. CITY OF NEW YORK; New York City Department of Education; Sharyn C. Burnett; Richard Cooperman; and George Lombardi, Defendants-Appellees.
No. 10-3815-cv.
United States Court of Appeals, Second Circuit.
Nov. 2, 2011.
We have conducted an independent review of the record, and we affirm the district court‘s grant of summary judgment dismissing the complaint. First, as to the APA claims against DOE and the claims against NCO, we affirm for substantially the reasons set forth by the district court below. Sanon‘s bare assertion, for example, that he never received the student loans at issue was unsupported by any concrete or specific evidence, and it was contradicted by ample documentary evidence submitted by DOE. See Davis v. State of New York, 316 F.3d 93, 100 (2d Cir. 2002) (“[R]eliance upon conclusory statements or mere allegations is not sufficient to defeat a summary judgment motion.“). Likewise, with respect to the claims against NCO, the HEA does not provide student borrowers a private right of action to enforce its provisions. Josey v. Sallie Mae, Inc., No. 09 Civ. 4403(AJP), 2009 WL 2518643, at *5 & n. 8 (S.D.N.Y. Aug. 17, 2009).
Second, with respect to Sanon‘s claims pursuant to the FTCA, we conclude that the district court erred in holding that Sanon did not comply with the FTCA‘s administrative exhaustion requirement.
We have considered Sanon‘s other arguments on appeal and have found them to be without merit. Accordingly, the decision of the district court is hereby AFFIRMED.
Plaintiff-Appellant Paul Desir (“Desir“) appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.) granting summary judgment to Defendants-Appellees New York City Department of Education (“Department of Education“), Sharyn C. Burnett (“Burnett“), Richard Cooperman (“Cooperman“) and George Lombardi (“Lombardi“).1 Desir alleged discrimination and unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII“), as amended,
Alan E. Wolin, Wolin & Wolin, Jericho, NY, for Plaintiff-Appellant.
Michael A. Cardozo (Kristin M. Helmers and Janet L. Zaleon, on the brief), Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.
PRESENT: WALKER, CHESTER J. STRAUB, and DEBRA ANN LIVINGSTON, Circuit Judges.
*
*
*
We review de novo a district court‘s order granting summary judgment. Molinari v. Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009). Summary judgment “is appropriate where there exists no genuine issue of material fact and, based on the undis-
When deciding whether summary judgment should be granted in a discrimination case, we must take additional considerations into account. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994). “A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue.” Id. “[A]ffidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Id. Summary judgment remains appropriate in discrimination cases, as “the salutary purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no less to discrimination cases than to other areas of litigation.” Weinstock, 224 F.3d at 41 (internal quotation marks omitted); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.“). Finally, we are free to affirm a district court‘s grant of summary judgment “on any ground fairly supported by the record,” including “for different reasons than those relied upon by the district court.” Abdu-Brisson, 239 F.3d at 466.
A. Desir‘s Discrimination Claim
On appeal, Desir argues that the district court erred in granting summary judgment to the Defendants-Appellees on his discrimination claim because disputed issues of material fact exist as to whether he was subject to unlawful discrimination. We examine discrimination claims brought pursuant to Title VII under the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See, e.g., Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. 411 U.S. at 802. To do so, the plaintiff must demonstrate that: 1) he was in a protected group; 2) he was qualified for the position; 3) he was subject to an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003); Collins v. N.Y. City Trans. Auth., 305 F.3d 113, 118 (2d Cir. 2002). We have held that the plaintiff‘s burden of proof at this stage is de minimis. Weinstock, 224 F.3d at 42.
Once the plaintiff has established a prima facie case of discrimination, the burden then shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for
Upon the defendant‘s proffer of such a reason, the presumption of discrimination arising with the prima facie case “drops from the picture.” Weinstock, 224 F.3d at 42 (citing St. Mary‘s Honor Ctr., 509 U.S. at 510-11). The plaintiff must then establish that the defendant‘s proffered reason is a mere pretext for actual discrimination. See McDonnell Douglas, 411 U.S. at 804; Weinstock, 224 F.3d at 42. The plaintiff must produce “sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons” presented by the defendant were false, and that “more likely than not discrimination was the real reason for the employment action.” Weinstock, 224 F.3d at 42 (internal quotation marks and alterations omitted). “In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination.” Id. “It is not enough ... to disbelieve the employer; the factfinder must [also] believe the plaintiff‘s explanation of intentional discrimination.” St. Mary‘s Honor Ctr., 509 U.S. at 519 (emphasis omitted).
Desir has failed to raise an inference of discrimination by showing that he was treated differently than similarly situated home instruction teachers. “A showing of disparate treatment—that is, a showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group—is a recognized method of raising an inference of discrimination for the purposes of making out a prima facie case.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (internal quotation marks omitted). “An employee is similarly situated to co-employees if they were (1) subject to the same performance evaluation and discipline standards and (2) engaged in comparable conduct.” Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493-94 (2d Cir. 2010) (internal quotation marks omitted). Desir principally relies on the fact that he was both the only African-American teacher of the five who received unsatisfactory ratings for the 2004-2005 school year and the only one of those five who was fired. Desir does not dispute, however, that the four Caucasian teachers who received unsatisfactory ratings were all tenured, while Desir held a probationary position and could be fired at-will. Thus, the four Caucasian teachers were not “subject to the same performance evaluation and discipline standards” as Desir. See id. Further, Desir has not presented any evidence to show that the conduct for which the other four teachers were sanctioned was similar to the conduct he engaged in. Instead, he offers only the conclusory assertion that the four instructors “committed far more egregious acts” than Desir. This will not suffice to demonstrate that the four instructors engaged in comparable conduct.
Moreover, even assuming that Desir has established a prima facie case of discrimination, he has failed to demonstrate that the non-discriminatory reasons put forth by the Defendants-Appellees were pretextual. Beginning shortly after Desir was hired as a home instruction teacher on September 7, 2004 and continu-
B. Desir‘s Retaliation Claim
Desir argues that the Defendants-Appellees unlawfully retaliated against him for complaining about his allegedly discriminatory treatment. We review Title VII retaliation claims under a four-step burden-shifting analysis similar to the McDonnell Douglas test for Title VII disparate treatment claims. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (citing McDonnell Douglas, 411 U.S. at 802-05). As with McDonnell Douglas, the plaintiff must first establish a prima facie case of retaliation by showing 1) participation in a protected activity; 2) defendant‘s knowledge of the protected activity; 3) an adverse employment action; and 4) a causal connection between the protected activity and the adverse employment action. Id.; see also Kessler v. Westchester Cnty. Dep‘t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006). The plaintiff‘s burden of proof as to this first step “has been characterized as ‘minimal’ and ‘de minimis‘.” Jute, 420 F.3d at 173 (internal quotation marks omitted).
Desir fails to establish a prima facie case of retaliation because he has not shown a causal connection between the protected activity and the adverse employment action. The district court correctly noted that the only protected activity at issue here was the filing of complaints with the City‘s Office of Equal Opportunity and the Equal Employment Opportunity Commission in April 2005. Desir points to the short period of time between the filing of the complaints in April and his receipt of the unsatisfactory rating and firing in June of 2005 as evidence of a causal connection between his complaints and his subsequent firing. But, as discussed above, the Defendants-Appellees documented their dissatisfaction with Desir‘s performance beginning well before the filing of the complaints in April. Thus, Desir has not met his initial burden of establishing a prima facie case of retaliation and his retaliation claim must fail.
C. Desir‘s First Amendment Claim
“[T]he First Amendment protects a public employee‘s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “To constitute speech on a matter of public concern, an employee‘s expression must be fairly considered as relating to any matter of political, social, or other concern to the community. Speech that, although touching on a topic of general importance, primarily concerns an issue that is personal in nature and generally related to the speaker‘s own situation, such as his or her assignments, promotion, or salary, does not address matters of public concern.” Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (citation omitted).
D. Desir‘s Procedural Due Process Claim
Desir claims that he was deprived of his right to a hearing prior to his termination.3 The record is clear, however, that Desir was a probationary teacher at the time of his termination. Desir therefore had no Fourteenth Amendment property interest in his position. See Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006) (noting that an at-will government employee has no property interest in continued employment). Desir claims that he had achieved tenure by virtue of his years of service as a probationary teacher and a substitute teacher. He was afforded an opportunity to present this claim in an Article 78 proceeding and it was denied. See Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) (finding Article 78 proceeding to be a “perfectly adequate post-deprivation remedy“). Accordingly, the district court properly dismissed Desir‘s procedural due process claim.
E. Desir‘s Equal Protection Claim
To assert a claim for municipal liability under
F. Conclusion
We have reviewed the parties’ remaining arguments and find them to be moot, waived, or without merit. See Norton v. Sam‘s Club, 145 F.3d 114, 117 (2d Cir. 1998). The judgment of the district court is therefore AFFIRMED.