10-3076-cv
Kim v. Columbia Univ.

                               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 TO 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6th day of February, two thousand twelve.

PRESENT: RALPH K. WINTER,
         REENA RAGGI,
         DENNY CHIN,
                   Circuit Judges.
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JOHN Y. KIM,
                                       Plaintiff-Appellant,
                             v.                                                         No. 10-3076-cv

COLUMBIA UNIVERSITY,
                  Defendant-Appellee.
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FOR APPELLANT:                         John Y. Kim, pro se, Ho Ho Kus, New Jersey.

FOR APPELLEE:                          Edward A. Brill, Alychia Lynn Buchan, Proskauer Rose LLP,
                                       New York, New York.

          Appeal from a judgment of the United States District Court for the Southern District

of New York (Colleen McMahon, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on June 2, 2010, is AFFIRMED.

       Plaintiff John Y. Kim appeals pro se from an award of summary judgment in favor

of Columbia University on claims of retaliation for filing federal claims against Columbia

under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the

Employee Retirement Income Security Act of 1974 (“ERISA”), as well as dismissal of a

freestanding ERISA claim. We assume the parties’ familiarity with the underlying facts and

the record of prior proceedings, which we reference only as necessary to explain our decision

to affirm.

1.     Retaliation

       We review the challenged award of summary judgment de novo, resolving all

ambiguities and drawing all permissible factual inferences in favor of Kim. See Brod v.

Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011). We will uphold the award only if “the

pleadings, the discovery and disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)(2)).

       Following de novo review of the record, we affirm the challenged award on Kim’s

retaliation claim for substantially the reasons stated by the district court. On appeal, Kim

argues that the temporal proximity between Columbia’s May 2007 closure of his retirement

account and the April 2007 settlement proceedings in his then-pending discrimination case

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was sufficient to permit an inference of retaliation. Although temporal proximity between

protected activity and adverse action may be sufficient to satisfy the causality element of a

prima facie retaliation claim, this period is measured from the date of the “employer’s

knowledge of [the] protected activity.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (per curiam); see Nagle v. Marron, 663 F.3d 100, 110–11 (2d Cir. 2011). This court

has not identified an outer limit beyond which a temporal relationship is too attenuated to

support a finding of causality. See Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545,

554 (2d Cir. 2001). Instead, we “exercise [our] judgment about the permissible inferences

that can be drawn from temporal proximity in the context of particular cases.” Espinal v.

Goord, 558 F.3d 119, 129 (2d Cir. 2009).

       Here, Kim filed his discrimination claim in federal court in June 2006, and Columbia

closed his retirement account approximately eleven months later in May 2007. Kim

acknowledges, however, that he initially filed a discrimination complaint against Columbia

with the Equal Employment Opportunity Commission in July 1992, and admits that

“Columbia had ample knowledge for at least the past fifteen (15) years” of his protected

activities. Appellant’s Br. 12. This lapse in time, coupled with the undisputed evidence that

Kim’s retirement account was closed pursuant to Columbia’s forfeiture of approximately

2,000 other putatively unvested accounts, is sufficient to eliminate any genuine issue of

material fact regarding causation.

2.     ERISA


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       a.     Jurisdiction

       Columbia argues that we lack jurisdiction to review the district court’s order

dismissing Kim’s ERISA claim because Kim did not specify that order in his notice of

appeal. We disagree. Kim stated in his notice that he sought to appeal the order “entered in

th[e] action on the 2[nd] day of June, 2010,” which included the order of dismissal. That

sufficed to provide us with appellate jurisdiction. See New Phone Co. v. City of New York,

498 F.3d 127, 131 (2d Cir. 2007) (explaining that appellate jurisdiction “depends on whether

the intent to appeal from [district court’s] decision is clear on the face of, or can be inferred

from, the notice[] of appeal”).

       b.     Mootness

       We review a judgment of dismissal de novo. See Nike, Inc. v. Already, LLC., 663

F.3d 89, 94 (2d Cir. 2011). Here, Kim appears to have waived any challenge to the district

court’s dismissal of his ERISA claim on mootness grounds by failing specifically to

challenge that decision in his opening brief. See LoSacco v. City of Middletown, 71 F.3d

88, 92–93 (2d Cir. 1995) (holding that issues not raised by pro se litigant in appellate brief

were abandoned, and explaining that, although “appellate courts generally do not hold pro

se litigants rigidly to the formal briefing standards . . . we need not manufacture claims of

error for an appellant proceeding pro se, especially when he has raised an issue below and

elected not to pursue it on appeal”); see also JP Morgan Chase Bank v. Altos Hornos de

Mex., S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not made in an


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appellant’s opening brief are waived even if the appellant pursued those arguments in the

district court or raised them in a reply brief.”). Even if Kim could clear that hurdle, we

would identify no error. The district court properly concluded that Kim’s ERISA claim was

rendered moot by Columbia’s full restoration of Kim’s retirement account with interest

because that was the only relief to which Kim could be entitled under 29 U.S.C. § 1132(a).

See Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 108 (2d Cir. 2008) (holding that

“sole remedies” available to plan participants bringing actions under 29 U.S.C. § 1132(a)(1)

are for “recovery of benefits due, or for enforcement of the terms of” retirement plan); see

also Gerosa v. Savasta & Co., 329 F.3d 317, 321 (2d Cir. 2003) (stating that “[c]lassic

compensatory and punitive damages are never included” as forms of relief available under

29 U.S.C. § 1132(a)(3)); Abrams v. Interco Inc., 719 F.2d 23, 32 (2d Cir. 1983) (upholding

dismissal of certain claims for lack of jurisdiction because no justiciable case or controversy

remained where defendants paid everything to which plaintiffs were entitled).

       We have considered Kim’s remaining arguments and find them to be without merit.

Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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