Calvin HARDING, Plaintiff-Appellant, v. WACHOVIA CAPITAL MARKETS, LLC, Wells Fargo Securities LLC, Richard Silva, Richard Sandulli, Defendants-Appellees.
No. 12-3817-cv.
United States Court of Appeals, Second Circuit.
Sept. 4, 2013.
We do not consider the issue of whether the officers had a duty to look at the receipt in Waldron‘s pocket once she alerted them to its existence and possible exculpatory value. Even if the officers had looked at the receipt, it did not contain information identifying Waldron as the purchaser and, in light of other evidence, was insufficient standing alone to defeat probable cause. See Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir.2003) (no duty to investigate prior to arrest “unsubstantiated claims about the emergency” that would have been exculpatory); Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir. 1996) (where exculpatory information was “not obviously true on its face,” it did not eliminate probable cause for the purpose of a qualified immunity inquiry); United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985) (“The fact that an innocent explanation may be consistent with the facts alleged does not negate probable cause.“).4
CONCLUSION
We have considered all of Waldron‘s remaining arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the August 16, 2013 judgment of the District Court.
Jason Solotaroff, Giskan Solotaroff Anderson & Stewart LLP, New York, NY, for Appellant.
Kenneth J. Turnbull (Anna Kolontyrsky, on the brief), Morgan, Lewis & Bockius LLP, New York, NY, for Appellees.
PRESENT: REENA RAGGI, GERARD E. LYNCH and RAYMOND J. LOHIER, JR., Circuit Judges.
SUMMARY ORDER
Plaintiff Calvin Harding appeals from an award of summary judgment to defendants Wachovia Capital Markets, LLC; Wells Fargo Securities LLC; Richard Silva; and Richard Sandulli on Harding‘s federal and state claims of race discrimination in promotion. See
In urging otherwise, Harding submits that pretext can be inferred from inconsistencies in defendants’ hiring decisions, their failure to follow their own hiring practices, and the lack of contemporaneous evidence supporting their hiring choices.
As to the first, Harding asserts that although defendants now contend that they hired or promoted persons with “specific skill sets” for the positions they were seeking to fill, Appellant‘s Br. 24, they had earlier indicated that they wanted to staff the front desk with people who had middle-office backgrounds, which he possessed, see id. at 24-25. In support, Harding points to deposition testimony of Richard Silva in an unrelated matter, in which Silva, explaining the hiring of Dana Barta, stated that defendants “needed to put more of a middle-office process around the operations and execution of [front-of-office] business.” Sept. 22, 2010 Silva Dep. Tr. 96:23-25, J.A. 254. In that same deposition, however, Silva also stated that Barta “had CDO experience and kind of fixed income structured securitization experience,” which “would be very relevant to where we were trying to go with that business.” Id. at 94:19-23, J.A. 254. These statements were consistent with Silva‘s 2011 testimony in this action, where he had explained that Barta had direct experience working “for JPMorgan in the CDO group. She had been through the rating agency process ... [and] held herself out to understand the rating agency methodologies, the principles, how they look at assets and rate securities.” Sept. 1, 2011 Silva Dep. Tr. 92:14-20, J.A. 444; see also id. at 93:5-7, J.A. 445 (reporting that employee thought Barta “would be a perfect fit, because of her skill set, with what he was trying to do“). Thus, the record reveals no inconsistency with respect to Barta‘s hire that would permit a finding of pretext. Cf. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (concluding that plaintiff demonstrated pretext because proffered reasons for dismissal in current suit directly contradicted previously stated reasons); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994) (holding that shifting explanations developed over time to counter evidence of age discrimination uncovered in state investigation could support inference of discrimination).
The same conclusion obtains with respect to Christina Petrou‘s promotion. Harding asserts that Richard Sandulli testified that Petrou “was hired because of her legal background to assist Mr. Threadgill with legal work,” when, in fact, she did not do legal work with Threadgill or otherwise. Appellant‘s Br. 27. In fact, Sandulli testified that Threadgill had expressed a need for someone with Petrou‘s background and wanted “somebody else to do ... the routine kind of paralegal type work” that Threadgill needed. Sandulli Dep. Tr. 56:20-24, J.A. 268. These statements are not inconsistent with Threadgill‘s deposition testimony in this case that Petrou was hired to support him and with Silva‘s testimony that Petrou was hired to work in Threadgill‘s group. Record evi-
Insofar as Harding conclusorily asserts that pretext may be inferred from defendants’ failure to follow normal hiring practices “where a minority employee is involved,” Appellant‘s Br. 25, he fails to explain what normal practices he is referring to and how defendants deviated from them in his case and, indeed, admits that defendants’ “hiring process was extremely informal and fluid,” id. at 11. In the absence of any supporting evidence, Harding cannot demonstrate pretext by claiming deviation from normal practices. Cf. Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312-13 (2d Cir.1997) (holding that evidence of defendant‘s substantial deviation from ingrained normal hiring procedure demonstrated pretext).
Where the plaintiff fails to adduce evidence of discrimination, pretext or an inference of discrimination cannot arise from defendants’ mere failure to produce contemporaneous evidence supporting their proffered reasons for the challenged hiring decisions. Such an inference may be drawn where a defendant‘s proffered reason for a challenged employment action is contradicted by other evidence. See, e.g., Carlton v. Mystic Transp., Inc., 202 F.3d at 137 (observing that purported non-discriminatory reason “appear[ed] questionable” in light of contrary contemporaneous justification for termination); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 34, 39 (2d Cir.1994) (stating that factfinder could infer pretext from lack of contemporaneous evidence of poor performance in light of objective evidence of strong performance). But here, no record evidence contradicts defendants’ assertion that the employees they hired for the front desk were the best candidates for the job. Nor is there any reason to conclude that defendants’ proffered nondiscriminatory, legitimate reason was “so lacking in merit” as to constitute “a reason manufactured to avoid liability.” Dister v. Cont‘l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir.1988).2
Nor did Harding adduce any other evidence indicating that defendants’ hiring decisions were animated by racial bias. See Garcia v. Hartford Police Dep‘t, 706 F.3d 120, 129 (2d Cir.2013) (requiring plaintiff “to point to evidence suggesting that discriminatory animus was motivating factor” (emphasis in original)). Even crediting Harding‘s assertion that he possessed technical skills and product knowledge superior to Petrou‘s and Murphy‘s, the record raises questions about his sales qualities. Meanwhile, it indicates that Charette excelled in this respect, and that other hires had particular skill sets that defendants valued: Barta in securitization, Petrou in compliance, and Murphy in accounting. Harding may disagree with defendants’ decision to value these skills, but to support an inference of race discrimina-
In sum, we conclude, as the district court did, that Harding failed to carry his burden of demonstrating that defendants’ non-discriminatory reason for not promoting him was pretextual, or that the real reason he was not promoted was racial bias. We have considered Harding‘s remaining arguments and conclude that they are without merit. The judgment of the district court is therefore AFFIRMЕD.