12-1510
Jason Cutler v. Stop & Shop Supermarket Co., L.L.C.

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
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 the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 7th day of March, two thousand thirteen.

Present: JOHN M. WALKER, JR.,
         ROBERT A. KATZMANN,
                     Circuit Judges,
         LORETTA A. PRESKA,
                     District Judge.*
___________________________________________________

JASON CUTLER,

                           Plaintiff-Appellant,

                           -v-                                          No. 12-1510

STOP & SHOP SUPERMARKET CO., L.L.C.,

                     Defendant-Appellee.
___________________________________________________

For Plaintiff-Appellant:          JOHN R. WILLIAMS, New Haven, CT.

For Defendant-Appellee:           GLENN W. DOWD (Howard Fetner, on the brief), Day Pitney
                                  LLP, Hartford, CT.



       *
          The Honorable Loretta A. Preska, of the United States District Court for the Southern
District of New York, sitting by designation.
       Appeal from the United States District Court for the District of Connecticut (Chatigny,

J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Jason Cutler appeals from a March 31, 2012, ruling and order of the

United States District Court for the District of Connecticut (Chatigny, J.) granting summary

judgment to Defendant Stop & Shop Supermarket Co., L.L.C., in this employment

discrimination and retaliation action. We assume the parties’ familiarity with the underlying

facts and procedural history of the case.

                                                 I.

       We begin with Cutler’s claims that Stop & Shop discriminated against him on the basis

of religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.,

and the Connecticut Fair Employment Practices Act (the “CFEPA”), Conn. Gen. Stat. §§ 46a-60,

et seq.; and on the basis of sexual orientation in violation of the CFEPA. To establish a prima

facie case of discrimination in violation of Title VII, “a claimant must show that: 1) he belonged

to a protected class; 2) he was qualified for the position; 3) he suffered an adverse employment

action; and 4) the adverse employment action occurred under circumstances giving rise to an

inference of discriminatory intent.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). The

same analysis is used to evaluate a claim under the CFEPA. Kaytor v. Elec. Boat Corp., 609

F.3d 537, 556 (2d Cir. 2010). Here, the parties dispute whether Cutler has produced evidence

demonstrating that an adverse employment action occurred under circumstances giving rise to an

inference of discrimination in violation of either Title VII or the CFEPA.


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       Cutler asserts that he was required to work forty hours per week in order to retain his

full-time status while his non-Jewish and heterosexual co-workers were allowed to work fewer

hours while still benefitting from the superior pay and benefits of full-time employment. Cutler

contends that two types of evidence could support a finding of differential treatment giving rise

to an inference of discrimination: (1) time records submitted by Stop & Shop and (2) his own

knowledge of his co-workers’ hours. We agree with the district court that neither type of

evidence supports an inference of discrimination here.

       First, Cutler argues that the time records submitted by Stop & Shop show that his co-

workers, like him, failed to work forty hours per five-day work-week as required by the

collective bargaining agreement but, unlike him, were not reprimanded for failing to do so.

Cutler’s observation regarding five-day work-weeks is correct. However, the records show that

each employee identified by Cutler worked an average of more than forty hours per seven-day

work-week. The records also show that it was extremely rare that one of Cutler’s co-workers

worked fewer than forty hours in a seven-day work-week. By contrast, Cutler worked an

average of 32.25 hours per seven-day work-week during the same time period.

       Cutler did not offer any evidence indicating that Stop & Shop ordered him to work forty

hours per five-day work-week. He did not allege that Stop & Shop refused him the opportunity

to work a forty-hour seven-day work-week or that it refused him a very occasional excuse from

working a full forty hours per week. Consequently, Cutler did not demonstrate that his co-

workers had “a situation sufficiently similar to [his] to support at least a minimal inference that

the difference of treatment may be attributable to discrimination.” McGuinness v. Lincoln Hall,

263 F.3d 49, 54 (2d Cir. 2001).


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       Second, Cutler asserts that he testified at his deposition that he was personally aware that

some of his co-workers did not work forty-hour weeks. At his deposition, Cutler claimed that he

knew about his co-workers’ hours because he saw the hours that were recorded in a book of time

sheets kept in the store. Cutler also testified that he personally observed three of his co-workers

coming in late or leaving early. Cutler contends that this testimony was sufficient to create a

genuine issue of material fact regarding the hours worked by the other employees.

       We reject Cutler’s argument to the extent that it is based on his testimony about the

contents of the book of time sheets because he did not produce those time sheets for the

summary judgment record. Under Federal Rule of Evidence 1002, “[a]n original writing,

recording, or photograph is required in order to prove its content” unless some exception applies.

Cutler raises no exception that might apply here.

       We also reject Cutler’s argument to the extent that it is based on his testimony about his

personal observations. Cutler did not produce evidence demonstrating that the hours indicated

by his personal observations differed from the hours reflected in Stop & Shop’s books. Cutler

only worked an average of 32.25 hours per week. He did not claim to know if other employees

worked late after he left, worked early before he arrived at the store, or worked on days that he

did not work. He did claim to be aware of the sick hours, personal hours, and vacation hours

taken by his co-workers. Cutler’s testimony regarding his personal observations did not rise to

the level of “evidence on which the jury could reasonably find for the plaintiff.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Consequently, Cutler failed to produce evidence

sufficient to withstand summary judgment on his discrimination claims.




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       We turn next to Cutler’s claim that he was retaliated against in violation of Title VII and

the CFEPA after complaining to the Connecticut Commission on Human Rights and

Opportunities (the “CCHRO”). To establish a prima facie case of retaliation in violation of Title

VII, an employee must show “(1) participation in a protected activity; (2) that the defendant

knew of the protected activity; (3) an adverse employment action; and (4) a causal connection

between the protected activity and the adverse employment action.” McMenemy v. City of

Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). Connecticut courts apply the same doctrinal

framework to state law claims of retaliation under the CFEPA. Kaytor, 609 F.3d at 556.

       Cutler failed to produce evidence from which a reasonable jury might infer that he had

satisfied the fourth component of his prima facie case of retaliation. Even assuming arguendo

that Cutler suffered an adverse employment action, the undisputed evidence is that Stop & Shop

first insisted that Cutler work forty hours per week several months before Cutler filed his

complaint and that Stop & Shop did not change its position thereafter. A plaintiff may

demonstrate causation “(1) indirectly, by showing that the protected activity was followed

closely by discriminatory treatment, or through other circumstantial evidence such as disparate

treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence

of retaliatory animus directed against the plaintiff by the defendant.” Hicks v. Bains, 593 F.3d

159, 170 (2d Cir. 2010) (alteration in original) (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d

111, 117 (2d Cir. 2000)). Here, Cutler relies entirely on the timing of the events to support a

finding of causation, yet any adverse employment action began before the protected activity took

place. Cutler has consequently failed to demonstrate a causal connection between his complaint

to the CCHRO and any adverse treatment to which he was subjected.


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       In sum, we hold that Cutler failed to produce evidence demonstrating either that any

adverse employment action occurred under circumstances giving rise to an inference of

discrimination or that there was a causal connection between any adverse employment action

and his complaint to the CCHRO. We have considered Cutler’s remaining arguments regarding

these two issues and find them to be without merit.

       Because we affirm the district court’s decision on these grounds, we decline to reach

whether the district court erred in holding that Cutler failed to produce evidence demonstrating

either that he had suffered an adverse employment action or that Stop & Shop’s proffered reason

for instructing him to work forty hours per week was pretext. We also decline to reach whether

Cutler’s claims under the CFEPA were preempted by section 301 of the Labor Management

Relations Act, 29 U.S.C. § 185.

                                                 II.

       We would be remiss if we did not comment on how the paucity of evidence supporting

Cutler’s claims in this case reflects upon the poor quality of the advice given by his attorney,

John R. Williams. Even if Williams believed this to be a valid case initially, after the

deficiencies in the evidence became apparent in discovery, he might have advised his client to

withdraw the claim entirely. He certainly had no basis to advise his client that there was reason

to appeal the grant of summary judgment for the defendant.

       Williams’s actions do not entirely surprise us, given his history of lawyering that falls

below minimum standards before this Court and the district courts. See, e.g., Amnesty Am. v.

Town of W. Hartford, 361 F.3d 113, 132-34 (2d Cir. 2004) (Sotomayor) (describing the

deficiencies in Williams’s submissions, citing cases where Williams “repeatedly disregarded the



                                                 6
rules of both this Court and the district courts in which he practices,” and noting that “[i]f

Williams continues to ignore this Court’s rules, . . . [it] will impose sanctions against him”);

United States v. Rogers, 16 F. App’x 38 (2d Cir. 2001) (noting that Williams’s argument on

appeal was entirely frivolous).

       Williams’s inability to meet even the most basic procedural requirements was evidenced

in oral argument, where he attempted to rebut the points in his adversary’s brief without having

bothered to submit a reply brief—a practice which, he stated, he often follows.

       As it appears that Williams has not recently been issued a warning, we are not imposing

sanctions at this time. However, we remind Williams that a continued disregard of our rules and

procedures will result in future discipline. See Fed. R. App. P. 46(b)-(c) (providing for discipline

or disbarment for attorneys who “fail[] to comply with any court rule”). Such discipline may

take the form of monetary sanctions or practical solutions. An example of the latter would be to

condition filings by Williams in this Court upon the provision of an affidavit, signed by his

client, to the effect that the client has read both Amnesty America, 361 F.3d at 132-34, and this

summary order and nonetheless wishes to proceed with Williams as counsel.

                                                III.

       For the reasons stated herein, the judgment of the district court is AFFIRMED.



                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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