08-5564-cv
Chukwurah v. Stop & Shop Supermarket Company

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference
to that database and the docket number of the case in which the order was entered.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty fifth day of November two thousand and nine.


PRESENT:

          ROGER J. MINER ,
          JOSÉ A. CABRANES,
          CHESTER J. STRAUB,
                        Circuit Judges.

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VICTOR CHUKWURAH ,

                                Plaintiff-Appellant,

          v.                                                                               No.08-5564-cv

STOP & SHOP SUPERMARKET COMPANY LLC, GERRY RUSSO ,
MICHAEL SMITH , STEVE BALLIRANO , and JERRY BIDWELL

                                Defendants-Appellees.*

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          *
              The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated
above.

                                                                    1
FOR PLAINTIFF-APPELLANT:                                           ANTHONY EMENGO , Anthony Emengo, P.C.
                                                                   Williamsburg, NY


FOR DEFENDANTS-APPELLEES:                                          DANIEL B. KLEIN , Seyfarth Shaw LLP,
                                                                   Boston, MA


        Appeal from a judgment of the United States District Court for the District of Connecticut
(Stefan R. Underhill, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff-appellant Victor Chukwurah (“plaintiff” or “Chukwurah”) appeals from a summary
judgment of the District Court entered on October 24, 2008, in favor defendants-appellees, Stop &
Shop Supermarket Company LLC (“Stop & Shop”) and several of its managers. In the underlying
action plaintiff asserted claims for: (1) discrimination based on race, national origin, color, and age
pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., the
Civil Rights Act of 1991, 42 U.S.C. § 1981, and the Connecticut Fair Employment Practices Act
(“CFEPA”), Con. Gen. Stat. § 46a-60, et seq.; and (2) retaliatory discharge pursuant to Title VII, the
CFEPA, and Connecticut common law of retaliatory discharge.

         In a ruling from the bench, the District Court applied the familiar three-step burden shifting
analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),1 and held that (1) plaintiff failed
to establish a prima facie case for discrimination because, in light of his poor performance reviews, he
had not shown that his job performance was satisfactory and (2) in the alternative, even assuming
plaintiff had established a prima facie case, he had not come forward with any evidence from which a
reasonable jury could find that the nondiscriminatory reason given for his discharge was a pretext
for discrimination. The District Court also dismissed Chukwurah’s retaliation claims. With respect
to his claim that defendants retaliated against him for joining a class action lawsuit under the Fair
Labor Standards Act, the District Court noted that the adverse employment action Chukwurah
complained of had actually occurred before he joined in the class action and, further, that there was
no evidence that plaintiff’s supervisors were aware of his participation in that lawsuit. With respect
to his claim that defendants retaliated against him for filing a complaint with the Connecticut
Commission on Human Rights and Opportunities (“CHRO”), the District Court held that there was
no evidence from which a reasonable jury could find that the stated reason for plaintiff’s discharge
was a pretext for retaliation.


         1
           Although McDonnell Douglas concerned the burden and allocation of proof under Title VII, its framework is
also applied to claims under 42 U.S.C. § 1981, Hudson v. Int’l Bus. Machs. Corp., 620 F.2d 351, 354 (2d Cir. 1980), and the
CFEPA, see Brittell v. Dep’t of Corr., 717 A.2d 1254, 1264 (Conn. 1998).

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       On appeal plaintiff argues primarily that the District Court erred in relying on the
performance reviews prepared by defendants and in failing to recognize plaintiff’s evidence that he
was subjected to disparate treatment. We assume the parties’ familiarity with the remaining factual
and procedural history of the case.

         Even assuming plaintiff established a prima facie case of discrimination, see Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001) (holding that it was error to find that plaintiff
had not established a prima facie case merely because employer was dissatisfied with plaintiff’s
performance and noting that “plaintiff must show only that he possesses the basic skills necessary
for performance of the job” (internal quotation marks and brackets omitted)), we agree with the
District Court that plaintiff failed to offer any evidence from which a reasonable jury could infer that
the legitimate, nondiscriminatory reason for discharge offered by defendants—plaintiff’s poor
performance—was a pretext for discrimination. In the years prior to his termination, Chukwurah
received consistently negative employment reviews. Those reviews characterized his performance as
requiring improvement or less than competent. Although he asserts that some of the documents in
his personnel file are of “dubious origin” and “recent fabrication[s],” see Appellant’s Br. 23,
Chukwurah himself signed most of the reviews that document his performance as being
substandard. Moreover, he fails to identify any evidence that refutes defendants’ characterization of
his performance.2

        Nor has plaintiff presented evidence of disparate treatment on account of a protected
characteristic. Although he has presented evidence that he complained about the lack of training he
received on a particular computer system, and evidence that he thereafter received only one day of
training, Chukwurah offers no evidence, apart from his own opinion, that similarly situated
employees outside a protected class received more training. Cf. Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 19 (2d Cir. 1995) (“[Plaintiff] was not entitled to a trial based on his speculative
assertions on matters as to which he admitted he had no knowledge and no evidence.”); Meiri v.
Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (“To allow a party to defeat a motion for summary judgment
by offering purely conclusory allegations of discrimination, absent any concrete particulars, would
necessitate a trial in all Title VII cases.”).




         2
            Our review is hindered by plaintiff’s failure to provide citations to the record for many of the factual
assertions in his brief, notwithstanding the requirements of Federal Rule of Appellate Procedure 28. See Fed. R. App. P.
28(a)(7) (An appellate brief must contain a “statement of facts relevant to the issues submitted for review with
appropriate references to the record.” ); cf. Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002) (“Perhaps
counsel for Appellant intends that we form an argument for him, by looking into the record to document the ‘facts’
posited in his ‘statement of the case,’ and then examining various combinations of these facts in the light of the legal
doctrines he later mentions. But that is simply not our job, at least in a counseled case.”). Moreover, many of the
citations plaintiff does include contain no reference to page numbers in the appendix submitted. See Fed. R. App. P.
28(e) (“References to parts of the record contained in the appendix filed with the appellant’s brief must be to the pages
of the appendix.”).

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        With respect to his claims for retaliatory discharge, Chukwurah asserts that he was subjected
to adverse employment actions based, in part, on his decision to join a class action lawsuit against
Stop & Shop. The undisputed record evidence, however, indicates that the relevant decision-makers
with control over plaintiff’s employment had no knowledge of his participation in the class action.
Accordingly, Chukwurah has not established a prima facie case for retaliatory discharge based on his
participation in that lawsuit. See Collins v. N.Y. City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002)
(“‘To make out a prima facie case of retaliation, an employee must show . . . that the employer was
aware of that activity . . . .’” (quoting Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842
F.2d 590, 593 (2d Cir. 1988)).

         Plaintiff also maintains that his discharge was retaliation for his filing a CHRO complaint in
July 2004, 11 months before his eventual termination. Even assuming Chukwurah has established a
prima facie case for this claim, he once again fails to come forward with any evidence showing that
Stop & Shop’s legitimate, non-retaliatory reason for firing him—his poor performance—was a
pretext for retaliation. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 130-31 (2d Cir. 1996) (affirming
grant of summary judgment on claim for retaliatory discharge where “[d]efendant came forward
with several legitimate reasons for the decision to fire plaintiff,” including complaints about her
performance and her inability to take direction from supervisors, and plaintiff “put forth no
evidence to show that defendant’s asserted reasons for the [decision] were pretextual.”).

                                           CONCLUSION

       We have considered all of plaintiff’s arguments and find them to be without merit. For the
foregoing reasons, the judgment of the District Court is AFFIRMED.

                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court

                                                By ______________________________




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