Case Information
‐ 635 ‐ cv (L) NY Dialysis Servs., UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY IS PERMITTED AND GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At stated term United States Appeals for Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City York, th day December, two thousand seventeen.
PRESENT: GUIDO CALABRESI,
RAYMOND J. LOHIER, JR.,
Circuit Judges ,
EDWARD R. KORMAN, Judge .*
LESLIE TOUSSAINT,
Plaintiff–Appellant–Cross ‐ Appellee Nos. ‐ (L), ‐ (XAP)
NY DIALYSIS SERVICES, INC.,
Defendant–Appellee–Cross Appellant . ** * Edward R. Korman, Eastern sitting designation. ** At oral argument, counsel Services withdrew its cross appeal Court’s denial its motion sanctions pursuant Federal Rule Civil Procedure 11(b).
FOR APPELLANT: M ICHAEL H. S USSMAN Sussman & Associates, Goshen, NY. APPELLEES: E VE I. K LEIN (Katelynn M. Gray, on the brief ), Duane Morris LLP, New NY. Appeal from judgment Court Southern York (Kenneth M. Karas, ). UPON DUE CONSIDERATION, HEREBY ORDERED, ADJUDGED, DECREED judgment
Leslie appeals from judgment (Karas, J.) granting summary Services, (“NYDS”) race discrimination claim under U.S.C. § and section Executive Law State York. assume parties’ familiarity with facts and record prior proceedings, which we refer only as necessary explain our decision affirm.
On summary judgment, claims under section U.S.C. § analyzed under familiar shifting framework set forth McDonnell Douglas Corp. Green, U.S. 802–04 (1973). Ruiz County Rockland, (42 1981); *3 Weinstock Columbia Univ., F.3d n.1 (2d Cir. (section 296).
Under that framework, once a plaintiff who lacks direct establishes a prima facie production shifts to defendant to “offer a legitimate nondiscriminatory termination.” Ruiz, at 491–92. If defendant able do so, plaintiff must show that defendant’s was pretext discrimination. Id. 492.
first argues erred holding that no he was terminated “under circumstances giving rise inference discrimination,” he make case discrimination. Id. “A plaintiff may raise such an inference showing employer subjected him disparate treatment, is, treated him less favorably than similarly situated employee outside his protected group.” Graham Long Island R.R., 2000). treated him less favorably than Amanda Warbington, “non black technician who provoked his response.” Joint App’x
*4 But assuming arguendo had established failed demonstrate NYDS’s firing pretextual. reasonable so conclude NYDS incorrectly credited Warbington’s account September incident, while rejecting Toussaint’s. But “we are decidedly not interested in truth allegations plaintiff. We are interested what motivated employer.” McPherson N.Y.C. Dep’t Educ., (quotation marks omitted). adduce any did not sincerely believe Warbington’s account otherwise would permit factfinder conclude real Toussaint’s termination. Graham, have considered Toussaint’s remaining arguments
they without merit. For foregoing reasons, COURT:
Catherine O’Hagan Wolfe, Clerk
[1] Except contention Warbington treated more favorably, offers no evidence, allegations, discriminated basis race.