        10-3815-cv
        Desir v. City of New York et al.

                                       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.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2      Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3      on the 2nd day of November, two thousand eleven.
 4
 5      PRESENT:
 6
 7               JOHN M. WALKER, Jr.,
 8               CHESTER J. STRAUB,
 9               DEBRA ANN LIVINGSTON,
10
11                              Circuit Judges.
12      ______________________________________________
13
14      PAUL DESIR,
15
16                                         Plaintiff-Appellant,
17
18                        - v. -                                             No. 10-3815-cv
19
20      CITY OF NEW YORK; NEW YORK CITY
21      DEPARTMENT OF EDUCATION; SHARYN C.
22      BURNETT; RICHARD COOPERMAN; and
23      GEORGE LOMBARDI,

24
25                              Defendants-Appellees.
26      ______________________________________________
27
28                                                ALAN E. WOLIN, Wolin & Wolin, Jericho, NY, for
29                                                Plaintiff-Appellant.


                                                             1
1                                         MICHAEL A. CARDOZO (Kristin M. Helmers and Janet L.
2                                         Zaleon, on the brief), Corporation Counsel of the City of
3                                         New York, New York, NY, for Defendants-Appellees.

4           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

5    that the judgment of the district court be AFFIRMED.

6           Plaintiff-Appellant Paul Desir (“Desir”) appeals from a judgment of the United States

7    District Court for the Eastern District of New York (Amon, J.) granting summary judgment to

8    Defendants-Appellees New York City Department of Education (“Department of Education”),

9    Sharyn C. Burnett (“Burnett”), Richard Cooperman (“Cooperman”) and George Lombardi

10   (“Lombardi”).1 Desir alleged discrimination and unlawful retaliation in violation of Title VII of

11   the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.; race

12   discrimination and retaliation in violation of the New York State Executive Law and the New

13   York City Administrative Code; and violations of his constitutional rights to free speech, equal

14   protection, and substantive and procedural due process under the First, Fifth, and Fourteenth

15   Amendments. By Memorandum and Order of August 24, 2010, the district court granted the

16   Defendants-Appellees’ motion for summary judgment on Desir’s federal claims and declined to

17   exercise supplemental jurisdiction over Desir’s state law claims. Desir timely appealed on

18   September 20, 2010. We assume the parties’ familiarity with the underlying facts and

19   procedural history.

20                                               *   *   *


            1
             The district court dismissed defendant City of New York (the “City”) from the action,
     reasoning that the Department of Education, rather than the City, was Desir’s direct employer.
     The district court also dismissed the Title VII claims against Cooperman, Lombardi, and Burnett
     on the ground that individuals are not subject to liability under Title VII. Desir does not
     challenge either of these rulings on appeal.

                                                     2
 1           We review de novo a district court’s order granting summary judgment. Molinari v.

 2   Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009). Summary judgment “is appropriate where there

 3   exists no genuine issue of material fact and, based on the undisputed facts, the moving party is

 4   entitled to judgment as a matter of law.” 10 Ellicott Square Court Corp. V. Mtn. Valley Indem.

 5   Co., 634 F.3d 112, 119 (2d Cir. 2011) (internal quotation marks omitted). The burden is on the

 6   moving party to demonstrate that no genuine issue respecting any material fact exists. Id. In

 7   reviewing a court’s decision granting summary judgment, the appellate court must consider “the

 8   evidence in the light most favorable to the non-moving party and draw[ ] all reasonable

 9   inferences in its favor.” Palmieri v. Allstate Ins. Co., 445 F.3d 179, 187 (2d Cir. 2006).

10   “Nevertheless, the non[-]moving party must come forward with specific facts showing that there

11   is a genuine issue of material fact for trial.” Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99

12   (2d Cir. 2003). “Conclusory allegations, conjecture, and speculation . . . are insufficient to create

13   a genuine issue of fact.” Id. (internal quotation marks omitted); see also Weinstock v. Columbia

14   Univ., 224 F.3d 33, 41 (2d Cir. 2000) (“[U]nsupported allegations do not create a material issue

15   of fact.”).

16           When deciding whether summary judgment should be granted in a discrimination case,

17   we must take additional considerations into account. Gallo, 22 F.3d at 1224. “A trial court must

18   be cautious about granting summary judgment to an employer when, as here, its intent is at

19   issue.” Id. “[A]ffidavits and depositions must be carefully scrutinized for circumstantial proof

20   which, if believed, would show discrimination.” Id. Summary judgment remains appropriate in

21   discrimination cases, as “the salutary purposes of summary judgment – avoiding protracted,

22   expensive and harassing trials – apply no less to discrimination cases than to . . . other areas of


                                                       3
 1   litigation.” Weinstock, 224 F.3d at 41 (internal quotation marks omitted); see also Abdu-Brisson

 2   v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary

 3   judgment may be appropriate even in the fact-intensive context of discrimination cases.”).

 4   Finally, we are free to affirm a district court’s grant of summary judgment “on any ground fairly

 5   supported by the record,” including “for different reasons than those relied upon by the district

 6   court.” Abdu-Brisson, 239 F.3d at 466.

 7          A. Desir’s Discrimination Claim

 8          On appeal, Desir argues that the district court erred in granting summary judgment to the

 9   Defendants-Appellees on his discrimination claim because disputed issues of material fact exist

10   as to whether he was subject to unlawful discrimination. We examine discrimination claims

11   brought pursuant to Title VII under the burden-shifting analysis articulated by the Supreme

12   Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See, e.g., Feingold

13   v. New York, 366 F.3d 138, 152 (2d Cir. 2004). Under the McDonnell Douglas framework, the

14   plaintiff must first establish a prima facie case of discrimination. 411 U.S. at 802. To do so, the

15   plaintiff must demonstrate that: 1) he was in a protected group; 2) he was qualified for the

16   position; 3) he was subject to an adverse employment action; and 4) the adverse employment

17   action occurred under circumstances giving rise to an inference of discrimination. See Terry v.

18   Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003); Collins v. N.Y. City Trans. Auth., 305 F.3d 113,

19   118 (2d Cir. 2002). We have held that the plaintiff’s burden of proof at this stage is de minimis.

20   Weinstock, 224 F.3d at 42.

21          Once the plaintiff has established a prima facie case of discrimination, the burden then

22   shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for the employment


                                                      4
 1   action. McDonnell Douglas, 411 U.S. at 802. In other words, “[t]he defendant must clearly set

 2   forth, through the introduction of admissible evidence, reasons for its actions which, if believed

 3   by the trier of fact, would support a finding that unlawful discrimination was not the cause of the

 4   employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal

 5   quotation marks omitted).

 6          Upon the defendant’s proffer of such a reason, the presumption of discrimination arising

 7   with the prima facie case “drops from the picture.” Weinstock, 224 F.3d at 42 (citing St. Mary’s

 8   Honor Ctr., 509 U.S. at 510-11). The plaintiff must then establish that the defendant’s proffered

 9   reason is a mere pretext for actual discrimination. See McDonnell Douglas, 411 U.S. at 804;

10   Weinstock, 224 F.3d at 42. The plaintiff must produce “sufficient evidence to support a rational

11   finding that the legitimate, non-discriminatory reasons” presented by the defendant were false,

12   and that “more likely than not discrimination was the real reason for the employment action.”

13   Weinstock, 224 F.3d at 42 (internal quotation marks and alterations omitted). “In short, the

14   question becomes whether the evidence, taken as a whole, supports a sufficient rational inference

15   of discrimination.” Id. “It is not enough . . . to disbelieve the employer; the factfinder must

16   [also] believe the plaintiff’s explanation of intentional discrimination.” St. Mary’s Honor Ctr.,

17   509 U.S. at 519 (emphasis omitted).

18          Desir has failed to raise an inference of discrimination by showing that he was treated

19   differently than similarly situated home instruction teachers. “A showing of disparate

20   treatment–that is, a showing that the employer treated plaintiff less favorably than a similarly

21   situated employee outside his protected group – is a recognized method of raising an inference of

22   discrimination for the purposes of making out a prima facie case.” Mandell v. Cnty. of Suffolk,


                                                      5
 1   316 F.3d 368, 379 (2d Cir. 2003) (internal quotation marks omitted). “An employee is similarly

 2   situated to co-employees if they were (1) subject to the same performance evaluation and

 3   discipline standards and (2) engaged in comparable conduct.” Ruiz v. Cnty. of Rockland, 609

 4   F.3d 486, 493-94 (2d Cir. 2010) (internal quotation marks omitted). Desir principally relies on

 5   the fact that he was both the only African-American teacher of the five who received

 6   unsatisfactory ratings for the 2004-2005 school year and the only one of those five who was

 7   fired. Desir does not dispute, however, that the four Caucasian teachers who received

 8   unsatisfactory ratings were all tenured, while Desir held a probationary position and could be

 9   fired at-will. Thus, the four Caucasian teachers were not “subject to the same performance

10   evaluation and discipline standards” as Desir. See id. Further, Desir has not presented any

11   evidence to show that the conduct for which the other four teachers were sanctioned was similar

12   to the conduct he engaged in. Instead, he offers only the conclusory assertion that the four

13   instructors “committed far more egregious acts” than Desir. This will not suffice to demonstrate

14   that the four instructors engaged in comparable conduct.

15          Moreover, even assuming that Desir has established a prima facie case of discrimination,

16   he has failed to demonstrate that the non-discriminatory reasons put forth by the Defendants-

17   Appellees were pretextual. Beginning shortly after Desir was hired as a home instruction teacher

18   on September 7, 2004 and continuing throughout the school year, Cooperman issued a series of

19   letters documenting deficiencies in Desir’s performance. These letters consistently identify the

20   same flaws in Desir’s performance: failure to accurately log teaching hours, failure to report

21   absences, and failure to call in cancellations to the home office. Desir has not shown why this

22   substantial record should be considered merely a pretext for discriminatory motives. In sum,


                                                     6
 1   Desir has failed to submit evidence providing any basis on which a reasonable jury could

 2   conclude that he suffered adverse employment actions as a result of discriminatory animus. We

 3   therefore find that the district court did not err in granting summary judgment to the Defendants-

 4   Appellees on Desir’s discrimination claims.

 5          B. Desir’s Retaliation Claim

 6          Desir argues that the Defendants-Appellees unlawfully retaliated against him for

 7   complaining about his allegedly discriminatory treatment. We review Title VII retaliation

 8   claims under a four-step burden-shifting analysis similar to the McDonnell Douglas test for Title

 9   VII disparate treatment claims. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d

10   Cir. 2005) (citing McDonnell Douglas, 411 U.S. at 802-05). As with McDonnell Douglas, the

11   plaintiff must first establish a prima facie case of retaliation by showing 1) participation in

12   protected activity; 2) defendant’s knowledge of the protected activity; 3) an adverse employment

13   action; and 4) a causal connection between the protected activity and the adverse employment

14   action. Id.; see also Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d

15   Cir. 2006). The plaintiff’s burden of proof as to this first step “has been characterized as

16   ‘minimal’ and ‘de minimis.’” Jute, 420 F.3d at 173 (internal quotation marks omitted).

17          Desir fails to establish a prima facie case of retaliation because he has not shown a causal

18   connection between the protected activity and the adverse employment action. The district court

19   correctly noted that the only protected activity at issue here was the filing of complaints with the

20   City’s Office of Equal Opportunity and the Equal Employment Opportunity Commission in

21   April 2005. Desir points to the short period of time between the filing of the complaints in April

22   and his receipt of the unsatisfactory rating and firing in June of 2005 as evidence of a causal


                                                       7
 1   connection between his complaints and his subsequent firing. But, as discussed above, the

 2   Defendants-Appellees documented their dissatisfaction with Desir’s performance beginning well

 3   before the filing of the complaints in April. Thus, Desir has not met his initial burden of

 4   establishing a prima facie case of retaliation and his retaliation claim must fail.

 5          C. Desir’s First Amendment Claim

 6          “[T]he First Amendment protects a public employee’s right, in certain circumstances, to

 7   speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410,

 8   417 (2006). “To constitute speech on a matter of public concern, an employee's expression must

 9   be fairly considered as relating to any matter of political, social, or other concern to the

10   community. Speech that, although touching on a topic of general importance, primarily concerns

11   an issue that is personal in nature and generally related to the speaker's own situation, such as his

12   or her assignments, promotion, or salary, does not address matters of public concern.” Jackler v.

13   Byrne, No. 10-0859-cv, 2011 WL 2937279, at *8 (2d Cir. July 22, 2011) (citation omitted).

14          Desir has not shown that his complaints about his treatment by his home instruction

15   supervisors addressed “matters of public concern.” Although Desir argues he addressed

16   organizational problems with the home instruction program and not just personal matters, his

17   speech fundamentally concerned his own entitlement to privileges as a home instructor and

18   therefore cannot be considered to have encompassed matters of public concern.2 Accordingly,

19   the district court correctly concluded that Desir’s First Amendment claim fails as a matter of law.




            2
              To the extent that Desir identifies statements he made concerning the treatment of other
     instructors in the program, those remarks were made in his official capacity and thus do not
     receive protection under the First Amendment. See Garcetti, 547 U.S. at 424 (holding that the
     “First Amendment does not prohibit managerial discipline based on an employee’s expressions
     made pursuant to official responsibilities”).


                                                       8
 1          D. Desir’s Procedural Due Process Claim

 2          Desir claims that he was deprived of his right to a hearing prior to his termination.3 The

 3   record is clear, however, that Desir was a probationary teacher at the time of his termination.

 4   Desir therefore had no Fourteenth Amendment property interest in his position. See Segal v.

 5   City of New York, 459 F.3d 207, 212 (2d Cir. 2006) (noting that an at-will government employee

 6   has no property interest in continued employment). Desir claims that he had achieved tenure by

 7   virtue of his years of service as a probationary teacher and a substitute teacher. He was afforded

 8   an opportunity to present this claim in an Article 78 proceeding and it was denied. See Hellenic

 9   Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) (finding

10   Article 78 proceeding to be a “perfectly adequate postdeprivation remedy”). Accordingly, the

11   district court properly dismissed Desir’s procedural due process claim.

12          E. Desir’s Equal Protection Claim

13          To assert a claim for municipal liability under § 1983, a plaintiff must produce evidence

14   showing “(1) an official policy or custom that (2) cause[d him] to be subjected to (3) a denial of

15   a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007). Here, Desir

16   has alleged only that Cooperman and Lombardi fired him improperly; he pled no facts, nor

17   offered any evidence, to show that these actions occurred pursuant to a Department of Education

18   policy or practice. The district court therefore properly concluded that Desir’s equal protection

19   claim fails as a matter of law.




            3
             Desir does not challenge the district court’s dismissal of his substantive due process
     claim on appeal.

                                                      9
1          F. Conclusion

2          We have reviewed the parties’ remaining arguments and find them to be moot, waived, or

3   without merit. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). The judgment of

4   the district court is therefore AFFIRMED.

5

6                                                     FOR THE COURT:
7                                                     Catherine O’Hagan Wolfe, Clerk

8




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