10-1924-cv
Dixon v. International Federation of Accountants, 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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 25th day of
March, two thousand eleven.

Present:    RALPH K. WINTER,
            JOSEPH M. McLAUGHLIN,
            PETER W. HALL,
                              Circuit Judges.
________________________________________________

PATRICIA DIXON,

                    Plaintiff-Appellant,

                    v.                                                 No. 10-1924-cv

INTERNATIONAL FEDERATION OF ACCOUNTANTS,
RUSSELL GUTHRIE, IAN BALL, and SYLVIA BARRETT,

                    Defendants-Appellees,

DOES 1 THROUGH 10, INCLUSIVE,

            Defendants.
________________________________________________

FOR APPELLANT:                          NKEREUWEM UMOH, Umoh Law Firm, P.L.L.C., Brooklyn, NY.

FOR APPELLEES:          GREG REILLY, Littler Mendelson, P.C., New York, NY.
________________________________________________
       Appeal from the United States District Court for the Southern District of New York

(Baer, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the District Court be and hereby is AFFIRMED.

       Plaintiff Patricia Dixon appeals from a judgment entered by the district court (Baer, J.),

granting summary judgment in favor of the International Federation of Accountants (“IFAC”)

and Russell Guthrie, Ian Ball, and Sylvia Barrett (collectively, “Defendants”), and denying

Dixon’s motion for partial summary judgment. Dixon brought suit against IFAC alleging

employment discrimination based on age, race, and national origin as well as retaliation under

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000 et seq.; the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621 et seq.; Section 1981 of the Civil

Rights Act of 1866, 42 U.S.C. § 1981; the New York State Human Rights Law (“NYSHRL”),

N.Y. Exec. Law § 296 et seq.; and New York City Human Rights Law (“NYCHRL”),

N.Y.C.R.R. §8-107. Dixon also asserted state law claims for breach of contract against IFAC

and tortious interference with contract by Guthrie, Ball, and Barrett. We assume the parties’

familiarity with the underlying facts and procedural history of the case.

       We review an appeal from an order granting summary judgment de novo, “resolving all

ambiguities and drawing all permissible factual inferences in favor of the party against whom

summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010). Summary

judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c).



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I.     Employment Discrimination

       All of Dixon’s employment discrimination claims are analyzed under the three-step

burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (applying McDonnell Douglas

burden-shifting framework to employment discrimination claims brought under Title VII and §

1981); Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (applying

McDonnell Douglas framework to ADEA claim); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.

2010) (applying McDonnell Douglas to employment discrimination claims under the NYSHRL

and the NYCHRL); see also Gorzynski, 596 F.3d at 106 (holding that even after the Supreme

Court’s decision in Gross v. FBL Fin. Servs., 129 S. Ct. 2343 (2009), this Court continues to

apply the McDonnell Douglas burden-shifting framework for ADEA claims).

       To establish a prima facie case of discrimination under McDonnell Douglas, a plaintiff

must show: (1) she is a member of a protected group; (2) she was qualified for the position; (3)

she experienced an adverse employment action; and (4) that action occurred under circumstances

giving rise to an inference of discrimination. Gorzynski, 596 F.3d at 107. The district court held

that Dixon could not meet this standard. We agree. Although Dixon satisfies the first three

criteria, she fails to produce any evidence that her termination occurred under circumstances

suggesting discrimination. Indeed, her entire employment discrimination claim is predicated on

an isolated derogatory remark made by Barrett, who played no role in Dixon’s termination. We

have long held that stray comments of this variety do not create an inference of discrimination.

See Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir. 1998) (“Stray remarks, even if

made by a decision maker, do not constitute sufficient evidence [to support] a case of



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employment discrimination.”). Even assuming arguendo that Dixon could establish a prima

facie case, the record overwhelmingly demonstrates that IFAC had a legitimate, non-

discriminatory reason for terminating Dixon—namely, her deficient work performance. See

Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 93 (2d Cir. 2001) (“[Plaintiff’s] late

reports, failure to lead, and incapacity to bring in new business—especially in the face of an

express requirement that he do so—were legitimate reasons for [Plaintiff’s] . . . termination.”).

II.    Retaliation

       To establish a prima facie case of retaliation, a plaintiff must show that: (1) she

participated in a protected activity; (2) she suffered an adverse employment action; and (3) a

causal connection exists between her protected activity and her adverse employment action.1

Gorzynski, 596 F.3d at 110. Even if a plaintiff sets forth a prima facie case, however, this

establishes only a rebuttable presumption of retaliation, and where the defendant identifies a

legitimate, non-retaliatory reason for the adverse employment action, the burden shifts back to

the plaintiff to show that the defendant’s articulated reason is a pretext for retaliation. See

Stratton v. Dep’t for the Aging for the City of New York, 132 F.3d 869, 879 (2d Cir. 1997).




       1
         We acknowledge that the standard governing retaliation claims under the NYCHRL is
different (and broader) than that applicable claims under federal and state law. See generally
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (comparing the
NYCHRL standard to its state and federal counterparts). Nevertheless, we find that, like her
federal and state claims, Dixon’s retaliation claim under the NYCHRL fails as a matter of law
because she did not produce any admissible evidence to demonstrate a causal connection
between her protected activity and any allegedly adverse action. See id.; see also Pilgram v.
McGraw-Hill Companies, Inc., 599 F.Supp.2d 462, 469 (S.D.N.Y. 2009) (to prevail on a
NYCHRL retaliation claim, plaintiff must show: “1) he engaged in a protected activity; 2) his
employer was aware of that activity; 3) he suffered an action that would be reasonably likely to
deter a person from engaging in a protected activity; and 4) that there was a causal connection
between the protected activity and the action”).

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       Although Dixon arguably satisfies the first two criteria of her prima facie case, in that she

claims to have complained of discrimination to Ball in June 2007 and was then terminated in

October 2007, she produced no direct evidence of a causal connection. To the extent she relies

on the temporal proximity between these two events as circumstantial evidence of causation,

that, standing alone, is insufficient. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (noting that the two events must be “very close,” and that a proximity of three months or

more is insufficient). Again, assuming arguendo that Dixon established a prima facie case of

retaliation, her poor work performance constituted a legitimate, non-retaliatory reason for her

termination, and she fails to identify any evidence, apart from temporal proximity, to suggest that

this reason was pretextual. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.

2010) (per curiam) (“The temporal proximity of events may give rise to an inference of

retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but

without more, such temporal proximity is insufficient to satisfy appellant’s burden to bring

forward some evidence of pretext.”)

III.   Supplemental Jurisdiction

       Dixon asserts that the district court improperly exercised supplemental jurisdiction over

her state and city law claims. She is mistaken. “[I]n any civil action of which the district courts

have original jurisdiction, the district courts shall have supplemental jurisdiction over all other

claims that are so related to claims in the action . . . that they form part of the same case or

controversy . . . .” 28 U.S.C. § 1367. Claims form part of the same case or controversy when

they “derive from a common nucleus of operative fact.” City of Chicago v. Int’l Coll. Of

Surgeons, 522 U.S. 156, 165 (1997). “We review the district court’s decision to exercise



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s[upplemental] jurisdiction under an abuse-of-discretion standard.” Valencia ex rel. Franco v.

Lee, 316 F.3d 299, 305 (2d Cir. 2003). Dixon’s federal, state, and city claims are all based on

her employment and termination by IFAC, and thus clearly derive from a common nucleus of

operative fact. We find no abuse of discretion in the district court’s decision to exercise

jurisdiction over and decide her non-federal claims.

       We have considered Dixon’s other arguments on appeal and find them to be without

merit. Accordingly, the judgment of the district court is AFFIRMED.



                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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