Piyush PATEL, Plаintiff-Appellant, v. The CITY OF NEW YORK, Thomas Depippo, Joseph A. Santino, Anna Colares, John and Jane Doe, said names being fictitious, the persons intended being those who aided and abetted the unlawful conduсt of the named defendants, Defendants-Appellees.
16-3633-cv
United States Court of Appeals, Second Circuit.
October 27, 2017
67
In Sasmor‘s prior appeаl, we concluded that he lacked standing to pursue his claims “because the state court‘s conclusive determination that [he] lacked standing to advance [his] claims precluded [him] from relitigating the issue in federal court.” Sasmor v. Powell, 554 Fed.Appx. 67, 68 (2d Cir. 2014) (summary order). The intervening decision in Ronald Henry Land Trust that the trust was not the proper party to initiate the eviction proceeding against Sasmor does not impair the state court ruling that Sasmor was not a proper party to intervene in the cotenants’ eviction proceeding because he lacked standing. For that reason, the district court properly dismissed his complaint.
We have considered Sasmor‘s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
Appearing for Appellant: Samuel O. Maduegbuna, Maduegbuna Cooрer LLP, New York, NY.
Present: JON O. NEWMAN, GUIDO CALABRESI, ROSEMARY S. POOLER, Circuit Judges.
SUMMARY ORDER
Plaintiff-appellant Piyush Patel appeals from two orders and a judgment entered by the United States District Court for the Southern District of New York (Preska and Cedarbaum, JJ.) granting defendants’ motion for summary judgment with respect to his claims of employment discrimination and retaliation in violation of
Patel claims that defendants failed to promote him because of his race and national origin, and that they also retaliated against him for exercising his rights under provisions of anti-discriminаtion law. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
1. Failure-to-Promote Claims
“[C]laims for race and national origin discrimination under Sections 1981 and 1983 are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). Under the McDonnell Douglas framework, “a plaintiff must first establish a prima facie case of discrimination.” Id. “Once a plaintiff meets th[e] initial burden, the burden then shifts to the defendant to offer a legitimate nondiscriminatory reason” for the alleged discriminatory action. Id. at 492. “If defendant does so, the burden returns to the plaintiff to show that the real reason for [the alleged discriminatory action] was...race and national origin.” Id.
In the failure-to-promote context, a plaintiff ordinarily must demonstrate the following elements to make out а prima facie case:
(1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff‘s qualifications.
Estate of Hamilton v. City of New York, 627 F.3d 50, 55 (2d Cir. 2010). “Of course, the fourth element is also established if the employer fills the position with a person outside the protected class who was similarly or less qualified than the plaintiff.” Yu v. New York City Hous. Dev. Corp., 494 Fed.Appx. 122, 125 n.4 (2d Cir. 2012) (internal quotation marks omitted).
In this appeal, Patel challenges his lack of promotion to three positions. Two were promotions received by Anna Colares, a Caucasian woman. Colares was promoted in March оf 2009 to Executive Assistant/Project Manager to the Deputy Commissioner of the City‘s General Support Services. Subsequently, Colares was promoted to Executive Director of Space & Design. The third was Antonio Cinquepalmi‘s promotion from Construction Project Manager II to Construction Project Manager III, a position with the working title of “Chief Construction Project Manager.”
As to the first and third promotions, even if we were to find that Patel made a prima facie showing, he fails to rebut the City‘s legitimate, nondiscriminatory reason for hiring Colares and Cinquepalmi instead of him, chiefly because he has not demonstrated that his qualifications were comparable to those of the other two candidates.
Regarding Colares‘s promotion to Executive Assistant/Project Manager, Patel‘s argument that he is more qualified than Colares rests on the claim that he was more experienced. We have held, however, thаt greater experience cannot alone establish that a candidate‘s qualifications are so superior to another‘s that the employer‘s hiring decision may be found to have been discriminatory. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104 (2d Cir. 2001). And Patel fails to provide other evidence that could create an inference of discrimination even if it were true that his qualifications equaled Colares‘s.
Second, we are not persuaded that Patel was qualified for Cinquepalmi‘s position. City paperwork stated that the person entering the position would be “responsible for assisting thе Director in overseeing one or more major . . . construction/renovation projects . . . that address health and safety issues.” App‘x at 1024. It further mentioned one of the position‘s roles as “evaluating reports of hazardous conditions.” App‘x at 1024. Significantly, the paperwork noted Cinquepalmi‘s Master of Science degree in Environmental and Occupational Health Science, аnd his Asbestos licenses. By contrast, Patel has not suggested that he has expertise with hazardous substances or health and safety issues. Nor has he demonstrated that the City‘s materials describing the position were inaccurate.
2. Retaliation Claims
Patel claims that the City retaliated against him due to an email he sent in 2009, and because of his filing of this lawsuit.
Retaliation claims are subject to the McDonnell Douglas scheme as wеll. Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 70 (2d Cir. 2015). “To make out a prima facie case of retaliation, an employee must show that the employee was engaged in protected activity; that the employer was aware of that activity; that the employee suffered adverse employment decisions; and that there was a causal connection between the protected activity and the adverse employment action.” Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002). “Protected activity” is an assertion of rights covered by the provision of law under which the plaintiff is suing. See Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998) (“[T]o be actionable under § 1981, the retaliation must have been in response to the claimant‘s assertion of rights that were protected by § 1981. An act of retaliation for engaging in activity protected by Title VII does not give rise to a claim for retaliation that is cognizable under § 1981 unless that activity was also protected by § 1981.” (citations omitted)); see also Ya-Chen Chen, 805 F.3d at 70 (Title VII).
Patel‘s 2009 email did not constitute protected activity bеcause it does not discuss discrimination on the basis of race or na-
Patel‘s retaliation claims based on his filing of this lawsuit fare no better. Patel contends that the City retaliated because (1) his supervisors evaluated his performance as “good” when in past years it was “very good,” even though, uрon his protestation, he was rated “very good,” and (2) his supervisor placed a disciplinary memorandum in his file in 2014. An “adverse action” sufficient to support a retaliation claim is one that is “harmful to thе point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 2409, 162 L.Ed.2d 345 (2006). We do not see how the supervisors’ ultimate assignment of the rating Patеl requested was “harmful” in this way. And the disciplinary memorandum does not demonstrate retaliation, both because Patel admitted that others were disciplined for similar actions, and because it was remote in time from relevant events in this suit.
Finally, we do not evaluate Patel‘s arguments pertaining to the City HRL, because as the City argues, and Patel does not dispute, he failed to raise these arguments in a sufficient manner before the district court. In civil cases, “[i]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal,” with exceptions inapplicable here. Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.