Morales v. New York State Department of Labor

530 F. App'x 13

2d Cir.

2013

Check Treatment

Docket

Deborah L. MORALES, Plaintiff-Appellant, v. NEW YORK STATE DEPARTMENT OF LABOR, DIVISION OF EMPLOYMENT SERVICES, Defendant-Appellee.

No. 12-3331-cv.

United States Court of Appeals, Second Circuit.

July 16, 2013.

Present: ROSEMARY S. POOLER, and RAYMOND J. LOHIER, JR., and SUSAN L. CARNEY, Circuit Judges.

and that he was prejudiced by his counsel‘s performance, none of which Konate has alleged. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir.2008). Even if Konate had alleged ineffective assistance of counsel, however, no prejudice resulted from his counsel‘s actions because the BIA did not err in determining that Konate‘s new evidence did not demonstrate that he had testified truthfully at his original merits hearing and thus established good moral character for the purposes of eligibility for cancellation of removal. See Rabiu v. INS, 41 F.3d at 879, 882 (2d Cir.1994); Jian Yun Zheng v. U.S. Dep‘t of Justice, 409 F.3d 43, 48 n. 2 (2d Cir.2005).

Finally, we lack jurisdiction to review the BIA‘s discretionary decision not to reopen Konate‘s proceedings sua sponte. See Ali, 448 F.3d at 518.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).

* The Clerk of the Court is directed to amend the caption as set out above.

Linda Marie Correia (Sheri Strickler Shilling, on the brief), Webster, Fredrickson, Correia & Puth, PLLC, Washington, DC, for Appellant.

Bethany A. Davis Noll, Assistant Solicitor General (Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Cecelia C. Chang, Deputy Solicitor General, on the brief), New York, NY, for appellee.

SUMMARY ORDER

Deborah Morales appeals from the district court‘s July 18, 2012 judgment in favor of the Department of Labor (“DOL“) on Morales‘s claim of retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII“), 42 U.S.C. § 2000e et seq. following a jury trial, challenging evidentiary rulings of the district court. Morales also appeals from the district court‘s March 30, 2012 grant of partial summary judgment to the DOL. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

A grant of summary judgment is reviewed “de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party‘s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir.2011). “Summary judgment may be granted ‘if 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 a judgment as a matter of law.‘” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997). Where the moving party demonstrates that there is no genuine dispute as to any material fact, the non-moving party must then present specific evidence demonstrating a genuine dispute, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.R.Civ.P. 56(a).

In the instant case, the DOL sought partial summary judgment on Morales‘s retaliation claim, conceding that there were genuine disputes of material fact that precluded summary judgment insofar as it arose from events that occurred after July 24, 2006. A necessary element of a claim for retaliation is that the plaintiff has engaged in protected activity. Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir.2006). In opposition to the DOL‘s motion, Morales offered evidence that she engaged in protected activity in February 2006, but did not offer any evidence or direct the district court to any part of the record indicating that she engaged in protected activity at an earlier time. Federal Rule of Civil Procedure 56 “does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.” Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002). A district court is obligated only to consider the materials cited to it by the parties. Fed.R.Civ.P. 56(c)(3).

The district court granted partial summary judgment on the retaliation claim, allowing Morales to proceed to trial regarding any events that occurred on or after February 16, 2006. Morales now points to other informal complaints she made in order to urge this Court to vacate this grant of partial summary judgment. Morales has forfeited this argument by failing to present these incidents of alleged protected activity to the district court at the summary judgment stage. See Schipani v. McLeod, 541 F.3d 158, 159 n. 3 (2d Cir.2008) (“[M]any cases use ‘forfeiture’ and ‘waiver’ interchangeably, [but] we believe that ‘forfeiture’ is the correct terminology here, because it refers to a litigant‘s ‘failure to make the timely assertion of a right,’ while ‘waiver’ refers to a litigant‘s intentional relinquishment of a known right.” (internal citation omitted)). If a plaintiff does not assert that an event constituted protected activity to the district court, this Court will consider it forfeited. See Katel L.L.C. v. AT&T Corp., 607 F.3d 60, 68 (2d Cir.2010). While forfeiture is a prudential doctrine, id., here Morales “has offered no reason for [her] failure to raise this argument to the district court,” and thus “we decline to exercise our discretion” to consider it now, In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir.2008). The district court‘s grant of partial summary judgment is therefore affirmed.

“We review a district court‘s evidentiary rulings under a deferential abuse of discretion standard, and will not disturb such rulings unless they are ‘manifestly erroneous.‘” SR Int‘l Bus. Ins. Co. v. World Trade Ctr. Properties, LLC, 467 F.3d 107, 119 (2d Cir.2006) (citations omitted). It is certainly the case that when presiding over a retaliation trial where the attendant claims of discrimination have already been dismissed, the district court cannot exclude evidence of the allegedly discriminatory acts because to do so would hamstring the plaintiff‘s case by preventing her from demonstrating that she engaged in protected activity. Contrary to Morales‘s current assertions, the district court did not commit such an error here. The district court permitted both testimony about and the submission of documentary evidence of the discriminatory acts alleged by Morales—that is, the disciplinary actions taken against her. The district court excluded evidence offered to demonstrate the existence of protected activity that related to the time period for which the retaliation claim had already been dismissed at summary judgment. We cannot conclude that these decisions, based on the balancing of factors under Federal Rule of Evidence 403, were “manifestly erroneous.” SR Int‘l Bus. Ins. Co., 467 F.3d at 119.

We have considered Morales‘s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear its own costs.

ROSEMARY S. POOLER

RAYMOND J. LOHIER, JR.

SUSAN L. CARNEY

Circuit Judges

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