     08-4230-cv
     Khan v. Bank of America, N.A.



                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
     R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER
     FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE
     P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A
     DOCUM ENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .



 1   At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
 2   Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 21st day of April,
 3   two thousand and ten.
 4
 5   PRESENT:
 6               JOHN M. WALKER, JR.,
 7               DEBRA ANN LIVINGSTON,
 8               GERARD E. LYNCH,
 9                                 Circuit Judges.
10   _______________________________________________
11
12   ATIF J. KHAN,
13
14                                   Plaintiff-Appellant,
15                   v.                                                   No. 08-4230-cv
16
17   BANK OF AMERICA, N.A.,
18
19                           Defendant-Appellee.
20   ______________________________________________
21
22
23   FOR APPELLANT:                                 ATIF J. KHAN , pro se, Saugerties, NY
24
25   FOR APPELLEE:                                  JAMES J. ROONEY , Bond, Schoeneck & King, PLLC,
26                                                  Buffalo, NY
27
28
29
30           Appeal from a judgment of the United States District Court for the Northern District of New

31   York (Hurd, J.).
 1             UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3             Plaintiff-Appellant Atif J. Khan, pro se, appeals from a judgment of the United States

 4   District Court for the Northern District of New York (Hurd, J.), granting summary judgment in favor

 5   of Defendant-Appellee Bank of America, N.A., in Appellant’s employment discrimination action

 6   brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and

 7   the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq. We assume the parties’

 8   familiarity with the underlying facts, the procedural history of the case, and the issues presented on

 9   appeal.

10             We review an order granting summary judgment de novo. Summary judgment is appropriate

11   when there are no genuine issues of material fact and the moving party is entitled to judgment as a

12   matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). We

13   may affirm on any basis apparent in the record. Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400,

14   405 (2d Cir. 2006).

15             We conclude that, even if Appellant had made out a prima facie case of disability, national

16   origin, or religious discrimination, Appellee proffered legitimate, non-discriminatory reasons for

17   Appellant’s termination — specifically, performance errors and behavioral issues about which

18   Appellant had been warned — and Appellant produced no evidence that raises a genuine question

19   of fact regarding whether these reasons were pretextual. See Tex. Dep’t of Cmty. Affairs v. Burdine,

20   450 U.S. 248, 256 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973).

21             Appellant asserts on appeal that his supervisors had knowledge of his medical condition and

22   national origin. That employees of Appellee merely had this knowledge, however, is insufficient

23   evidence that Appellee’s proffered reasons for Khan’s termination were pretextual. To the extent


                                                        2
 1   Appellant argues that his supervisors blocked his application to transfer to an operations analyst

 2   position by issuing him a written warning following his interview, Appellant produces no evidence

 3   that the hiring managers knew of this warning, and he produces no evidence to suggest that the

 4   warning itself was impermissible retaliation. As to the remainder of Appellant’s arguments

 5   regarding his claims under Title VII for retaliation and for religious and national origin

 6   discrimination, we affirm for substantially the same reasons stated in the district court’s opinion

 7   below.

 8            As to Appellant’s ADA claim, Appellant relies on a co-worker’s deposition testimony

 9   regarding his belief that Appellant’s disability was the basis for his termination. In this testimony,

10   however, the deponent admitted that his conclusion was based only on a “gut feeling,” and that he

11   could not explain or point to any specific evidence relating to any other basis for his belief that

12   Appellant was singled out because of his disability. We conclude that this testimony is insufficient

13   to raise a genuine issue of fact regarding pretext. Finally, with respect to Appellant’s assertion that

14   he was denied short-term disability benefits, he concedes on appeal that he was not entitled to such

15   benefits prior to May 25, 2005, and he produces no evidence that contradicts Appellee’s conclusion

16   that he was not entitled to such benefits after that date because by that point there was no medical

17   information supporting a finding of disability.

18            We have carefully considered all Appellant’s other arguments made on appeal, including

19   those raised in Appellant’s supplemental submission to this Court of March 3, 2010, and conclude

20   that they are without merit. For the foregoing reasons, the judgment of the district court is

21   AFFIRMED.
22
23                                                          FOR THE COURT:
24                                                          Catherine O’Hagan Wolfe, Clerk
25
26




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