POPLAR LANE FARM LLC, E. Robert Fussell, Plaintiffs-Appellants, v. The FATHERS OF OUR LADY OF MERCY, Defendant-Appellee.
No. 10-3667-cv.
United States Court of Appeals, Second Circuit.
Nov. 30, 2011.
453 Fed. Appx. 57
[1] Richards-Byers has offered little beyond her own speculation that any of her coworkers actually knew about her confidential interview. She does not contend that anyone told anyone else about the interview, and no coworkers ever indicated to her that they knew about the interview. Accordingly, in this instance, a jury could not draw a reasonable inference of retaliation.
[2] Richards-Byers claims that she was not promoted and received numerous adverse transfers, all in retaliation for her EEO interview, but she has not shown a causal connection between those events and the interview. Even her first transfer—which was closest in time to the interview—occurred more than a year later. There is no circumstantial evidence that she was treated differently from any similarly-situated employee, there is no direct evidence of retaliatory animus, and such attenuated temporal proximity cannot support an inference of retaliatory intent. See Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.2000); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001); cf. Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545, 554-55 (2d Cir.2001) (collecting cases).
The same is true of Richards-Byers‘s claim that she was not promoted to positions in 2004 and 2005. See Breeden, 532 U.S. at 273, 121 S.Ct. 1508 (“Action taken ... 20 months later suggests, by itself, no causality at all.“). This is especially true of the 2004 position, which was filled by the woman whose claim was the subject of Richards-Byers‘s 2002 EEO interview.
At best, the remaining allegations of failure to be promoted are “mere conclusory allegations” that “cannot by themselves create a genuine issue of material fact” to withstand summary judgment. See Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.1995) (internal quotation marks omitted).
We have considered all of Richards-Byers‘s additional arguments and find them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED.
PRESENT: JON O. NEWMAN, GERARD E. LYNCH, Circuit Judges, and JANE A. RESTANI, Judge.*
Kenneth Alan Manning and Timothy William Hoover, Phillips Lytle LLP, Buffalo, NY, for Appellees.
SUMMARY ORDER
Plaintiffs-Appellants Poplar Lane Farm LLC and E. Robert Fussell (“Appellants“) appeal from the district court‘s dismissal of their complaint pursuant to
“We review de novo a district court‘s dismissal of a complaint pursuant to
Appellants abandoned any breach of contract claim in the district court and have failed to raise adequately any such claim for our review. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.2001) (internal quotation marks omitted); see also Norton v. Sam‘s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.“). Because Fussell is an attorney, we decline to afford Appellants any of the “special consideration” that we “customarily grant to pro se parties.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82 n. 4 (2d Cir.2001) (internal quotation marks omit-ted). In any event, the complaint plainly fails to state a claim for breach of contract.
Appellants contend, for the first time on appeal, that their complaint stated claims in implied and quasi contract, quantum meruit, and negligent misrepresentation. In addition, they raised an unjust enrichment claim for the first time in a summary judgment motion, not in the complaint. Generally, we will not consider unpreserved arguments or those raised for the first time on appeal, see Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir.2005), and we see no reason to depart from that principle here. In any event, even were we to consider Appellants’ various unpreserved arguments, we would find them meritless.
Appellants’ claims necessarily are precluded by the 1984 gas lease. Under New York law, when a valid agreement governs the subject matter of a dispute between parties, claims arising from that dispute are contractual; attempts to repackage them as sounding in fraud, conversion, and other torts, as well as unjust enrichment, implied and quasi contract, and quantum meruit, are generally precluded, unless based on a duty independent of the contract.1 See Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 54 (2d Cir.2011) (unjust enrichment); Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir.2005) (quantum meruit); Clark-Fitzpatrick, Inc. v. Long Island R.R., 70 N.Y.2d 382, 388-89, 521 N.Y.S.2d 653, 516 N.E.2d 190, 193-94 (1987) (quasi-contract and tort); Sergeants Benev. Ass‘n Annuity Fund v. Renck, 796 N.Y.S.2d 77, 84 n. 3, 19 A.D.3d 107, 116 n. 3 (1st Dep‘t 2005) (negligent misrepresentation); Baker v. Norman, 643 N.Y.S.2d 30, 33, 226 A.D.2d 301, 304 (1st Dep‘t 1996) (fraud).
Although that principle does not apply “where there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue,” Am. Tel. & Util. Consultants v. Beth Israel Med. Ctr., 763 N.Y.S.2d 466, 466, 307 A.D.2d 834, 835 (1st Dep‘t 2003), neither of those factors is present here. Appellants’ conclusory allegation in their complaint that the lease assignment was somehow invalid does not by itself create a bona fide dispute. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.“). Contrary to Appellants’ contention, the district court correctly found that the lease placed no preconditions on the lessor‘s approval of the lessee‘s assignment. Thus, the assignment did not invalidate the lease.
Finally, Appellants’ claim that any district or circuit judge who is Roman Catholic must recuse himself from the case is totally without merit. Cf. MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 37 (2d Cir.1998) (“A suggestion that a
We have reviewed Appellants’ remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.