416 F. App'x 107
2d Cir.
2011

Patricia DIXON, Plaintiff-Appellant, v. INTERNATIONAL FEDERATION OF ACCOUNTANTS, Russell Guthrie, Ian Ball, and Sylvia Barrett, Defendants-Appellees, Does 1 Through 10, Inclusive, Defendants.

No. 10-1924-cv.

United States Court of Appeals, Second Circuit.

March 25, 2011.

Plaintiffs argue here that they pled a failure-to-warn claim; but the plain language of the amended complaint alleged only “defective design and/or manufacture of the [fractured] screw.” (Am. Compl. ¶ 11.) And plaintiffs have not moved to further amend the complaint. “[A] district court does not abuse its discretion when it fails to grant leave to amend a complaint without being asked to do so.” See Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir.2006). We therefore need not consider plaintiffs’ failure-to-warn argument, because it was untimely raised. See Id.

In any event, a failure-to-warn claim would be futile. Under New York law, “[t]he physician acts as an ‘informed intermediary’ between the manufacturer and the patient; and, thus, the manufacturer‘s duty to caution against a [device‘s] side effects is fulfilled by giving adequate warning through the [treating] physician, not directly to the patient.” Martin v. Hacker, 83 N.Y.2d 1, 9, 607 N.Y.S.2d 598, 628 N.E.2d 1308 (1993) (internal citations omitted); Banker v. Hoehn, 278 A.D.2d 720, 718 N.Y.S.2d 438, 440 (3d Dep‘t 2000) (applying informed intermediary doctrine to medical devices).

The record reflects that Dr. Suddaby was supplied product information, including specific warnings about nonunion and device component fracture, which he had read prior to the surgery; he attended courses about the device on a routine basis, which included hands-on practice on cadavers; he traveled several times to appellee‘s teaching facility; he reviewed workbooks that described the device and its use; and he was aware that obesity was contraindicated for the device. The plaintiffs do not identify any particular information that Dr. Suddaby lacked that would have affected the course of treatment.

We have considered all of appellants’ contentions on this appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.

Nkereuwem Umoh, Umoh Law Firm, P.L.L.C., Brooklyn, NY, for Appellant.

Greg Reilly, Littler Mendelson, P.C., New York, NY, for Appellees.

Present: RALPH K. WINTER, JOSEPH M. MCLAUGHLIN and PETER W. HALL, Circuit Judges.

SUMMARY ORDER

Plaintiff Patricia Dixon appeals from a judgment entered by the district court (Baer, J.), granting summary judgment in favor of the International Federation of Accountants (“IFAC“) and Russell Guthrie, Ian Ball, and Sylvia Barrett (collectively, “Defendants“), and denying Dixon‘s motion for partial summary judgment. Dixon brought suit against IFAC alleging employment discrimination based on age, race, and national origin as well as retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII“), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (“ADEA“), 29 U.S.C. 621 et seq.; Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the New York State Human Rights Law (“NYSHRL“), N.Y. Exec. Law § 296 et seq.; and New York City Human Rights Law (“NYCHRL“), N.Y.C.R.R. § 8-107. Dixon also asserted state law claims for breach of contract against IFAC and tortious interference with contract by Guthrie, Ball, and Barrett. We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We review an appeal from an order granting summary judgment de novo, “resolving all ambiguities and drawing all permissible factual inferences in favor of the party against whom summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir.2010). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

I. Employment Discrimination

All of Dixon‘s employment discrimination claims are analyzed under the three-step burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010) (applying McDonnell Douglas burden-shifting framework to employment discrimination claims brought under Title VII and § 1981); Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir.2010) (applying McDonnell Douglas framework to ADEA claim); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.2010) (applying McDonnell Douglas to employment discrimination claims under the NYSHRL and the NYCHRL); see also Gorzynski, 596 F.3d at 106 (holding that even after the Supreme Court‘s decision in Gross v. FBL Fin. Servs., — U.S. —, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), this Court continues to apply the McDonnell Douglas burden-shifting framework for ADEA claims).

To establish a prima facie case of discrimination under McDonnell Douglas, a plaintiff must show: (1) she is a member of a protected group; (2) she was qualified for the position; (3) she experienced an adverse employment action; and (4) that action occurred under circumstances giving rise to an inference of discrimination. Gorzynski, 596 F.3d at 107. The district court held that Dixon could not meet this standard. We agree. Although Dixon satisfies the first three criteria, she fails to produce any evidence that her termination occurred under circumstances suggesting discrimination. Indeed, her entire employment discrimination claim is predicated on an isolated derogatory remark made by Barrett, who played no role in Dixon‘s termination. We have long held that stray comments of this variety do not create an inference of discrimination. See Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir.1998) (“Stray remarks, even if made by a decision maker, do not constitute sufficient evidence [to support] a case of employment discrimination.“). Even assuming arguendo that Dixon could establish a prima facie case, the record overwhelmingly demonstrates that IFAC had a legitimate, non-discriminatory reason for terminating Dixon—namely, her deficient work performance. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 93 (2d Cir.2001) (“[Plaintiff‘s] late reports, failure to lead, and incapacity to bring in new business—especially in the face of an express requirement that he do so—were legitimate reasons for [Plaintiff‘s] termination.“).

II. Retaliation

To establish a prima facie case of retaliation, a plaintiff must show that: (1) she participated in a protected activity; (2) she suffered an adverse employment action; and (3) a causal connection exists1 between her protected activity and her adverse employment action. Gorzynski, 596 F.3d at 110. Even if a plaintiff sets forth a prima facie case, however, this establishes only a rebuttable presumption of retaliation, and where the defendant identifies a legitimate, non-retaliatory reason for the adverse employment action, the burden shifts back to the plaintiff to show that the defendant‘s articulated reason is a pretext for retaliation. See Stratton v. Dep‘t for the Aging for the City of New York, 132 F.3d 869, 879 (2d Cir.1997).

Although Dixon arguably satisfies the first two criteria of her prima facie case, in that she claims to have complained of discrimination to Ball in June 2007 and was then terminated in October 2007, she produced no direct evidence of a causal connection. To the extent she relies on the temporal proximity between these two events as circumstantial evidence of causation, that, standing alone, is insufficient. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that the two events must be “very close,” and that a proximity of three months or more is insufficient). Again, assuming arguendo that Dixon established a prima facie case of retaliation, her poor work performance constituted a legitimate, non-retaliatory reason for her termination, and she fails to identify any evidence, apart from temporal proximity, to suggest that this reason was pretextual. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.2010) (per curiam) (“The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant‘s burden to bring forward some evidence of pretext.“)

III. Supplemental Jurisdiction

Dixon asserts that the district court improperly exercised supplemental jurisdiction over her state and city law claims. She is mistaken. “[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action ... that they form part of the same case or controversy....” 28 U.S.C. § 1367. Claims form part of the same case or controversy when they “derive from a common nucleus of operative fact.” City of Chicago v. Int‘l Coll. of Surgeons, 522 U.S. 156, 165, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). “We review the district court‘s decision to exercise s[upplemental] jurisdiction under an abuse-of-discretion standard.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir.2003). Dixon‘s federal, state, and city claims are all based on her employment and termination by IFAC, and thus clearly derive from a common nucleus of operative fact. We find no abuse of discretion in the district court‘s decision to exercise jurisdiction over and decide her non-federal claims.

We have considered Dixon‘s other arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.

Notes

1
We acknowledge that the standard governing retaliation claims under the NYCHRL is different (and broader) than that applicable claims under federal and state law. See generally Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723 (2d Cir.2010) (comparing the NYCHRL standard to its state and federal counterparts). Nevertheless, we find that, like her federal and state claims, Dixon‘s retaliation claim under the NYCHRL fails as a matter of law because she did not produce any admissible evidence to demonstrate a causal connection between her protected activity and any allegedly adverse action. See id.; see also Pilgrim v. McGraw-Hill Companies, Inc., 599 F.Supp.2d 462, 469 (S.D.N.Y.2009) (to prevail on a NYCHRL retaliation claim, plaintiff must show: “1) he engaged in a protected activity; 2) his employer was aware of that activity; 3) he suffered an action that would be reasonably likely to deter a person from engaging in a protected activity; and 4) that there was a causal connection between the protected activity and the action“).
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