10-2322-cv
Doru Tsaganea v. City University of New York, Baruch College

                  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
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 13th day of September, two thousand eleven.
PRESENT:
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                      Circuit Judges,
            EDWARD R. KORMAN,
                      District Judge.*

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DORU TSAGANEA,
          Plaintiff-Appellant,

                  -v.-                                10-2322-cv

THE CITY UNIVERSITY OF NEW YORK,
BARUCH COLLEGE,
          Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:            DORU TSAGANEA, pro se,
                                    New York, New York.

FOR DEFENDANT-APPELLEE:             ANN P. ZYBERT, Assistant Solicitor
                                    General, for Eric T. Schneiderman,
                                    Attorney General of the State of
                                    New York, New York, New York.



      *
          The Honorable Edward R. Korman, of the United States
District Court for the Eastern District of New York, sitting by
designation.
           Appeal from the United States District Court for the

Southern District of New York (Batts, J.).    UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED.

           Plaintiff-appellant Doru Tsaganea appeals from the

district court's judgment entered March 25, 2010, granting

summary judgment to defendant-appellee City University of New

York, Baruch College ("CUNY"), dismissing his claims for (1)

national origin and religious discrimination, and (2)

retaliation, all brought pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII").1
We assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

           We review the district court's grant of summary

judgment de novo.   See Miller v. Wolpoff & Abramson, L.L.P., 321

F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823 (2003).

Summary judgment is appropriate only if "there is no genuine

dispute as to any material fact" and the moving party "is
entitled to judgment as a matter of law."    Fed. R. Civ. P. 56(a);

see Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir.
2011).   In determining whether genuine issues of material fact



     1
          Tsaganea's complaint also included a cause of action
for age discrimination under the Age Discrimination and
Employment Act (the "ADEA"). On appeal, however, Tsaganea does
not argue that his age discrimination claim was improperly
dismissed by the district court. Accordingly, we deem the ADEA
claim abandoned. See LoSacco v. City of Middletown, 71 F.3d 88,
92-93 (2d Cir. 1995) (claims raised below but not raised on
appeal are abandoned, even as to pro se litigants).

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exist, we must "resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary

judgment is sought."   Terry v. Ashcroft, 336 F.3d 128, 137 (2d

Cir. 2003) (internal quotation marks omitted).

            We have conducted an independent review of the record

in light of these principles.    We affirm the district court's

grant of summary judgment dismissing Tsaganea's discrimination

claims for substantially the reasons articulated by the district

court.   Specifically, Tsaganea did not present any concrete

evidence to support the inference that CUNY's decision not to

hire him for a full-time position was influenced by his national

origin (Romanian) or his religion (Christianity).

            To the contrary, the record shows, and a reasonable

jury could only find, that Tsaganea was not selected for the

full-time position because several other candidates were more

qualified.    Ninety-three applications were submitted for the

position.    After nineteen of the applicants (including Tsaganea)

were discussed at the department meeting, five were selected for

an interview.    Tsaganea was not one of the five.   As he conceded,

he had fewer publications than each of the interviewed

candidates, and his references were not as strong.    Although

Tsaganea argued that these factors should not have been

dispositive, the court's role is not to second guess CUNY's

judgment absent some evidence to raise an issue of fact as to a

discriminatory motive.   See Byrnie v. Town of Cromwell, Bd. of




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Educ., 243 F.3d 93, 103 (2d Cir. 2001); Scaria v. Rubin, 117 F.3d

652, 654-55 (2d Cir. 1997).

            We also affirm the district court's grant of summary

judgment dismissing Tsaganea's retaliation claim.    Tsaganea had

held the substitute assistant professor position for the 2002-

2003 school year while the department conducted its search for a

full-time faculty member.    When the candidate to whom CUNY

eventually offered the full-time position declined the offer in

or about May 2003, the department needed another one-year

substitute for the 2003-2004 school year while it searched for

another full-time candidate.    Tsaganea applied for the substitute

assistant professor position for the 2003-2004 school year on May

12, 2003, shortly after he filed a complaint with the State

Division of Human Rights ("SDHR") on April 8, 2003.2   A week

later, Tsaganea wrote a second letter to CUNY essentially

threatening to sue for retaliation if he were not hired.

Tsaganea was not hired, and the position was offered to someone

else.    Tsaganea contends that this decision was retaliation for

filing his SDHR complaint.

            At the summary judgment stage in a retaliation case,

the ultimate question is whether the plaintiff has presented

sufficient evidence to permit a reasonable jury to infer that

retaliation played a part in the defendant's adverse employment

decision.   Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 122


     2
          The April 8 complaint alleged discrimination based on
age and national origin. It was amended on April 22, 2003 to
include religion.

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(2d Cir. 1996); see James v. New York Racing Ass'n, 233 F.3d 149,

155-56 (2d Cir. 2000).    A plaintiff must "point to evidence

sufficient to permit an inference . . . that retaliation was a

'substantial reason for the adverse employment action.'"     Kaytor

v. Elec. Boat Corp., 609 F.3d 537, 553 (2d Cir. 2011) (quoting

Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.

2005) (emphasis added); see Van Zant v. KLM Royal Dutch Airlines,

80 F.3d 708, 714 (2d Cir. 1996) (plaintiff "obliged to produce

not simply some evidence, but sufficient evidence" that

employer's proffered reasons are false) (internal quotation marks

omitted).   "[I]t is not enough . . . to disbelieve the employer;

the factfinder must believe the plaintiff's explanation of

[retaliation]."   James, 233 F.3d at 156 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).

            We hold, on the record before us, that no reasonable

jury could conclude that CUNY's motive for not hiring Tsaganea

for the 2003-2004 substitute assistant professor position was

retaliatory.   First, Tsaganea's earlier appointment as a

substitute assistant professor in 2002 was only for one year, and

he had no right or entitlement to the substitute assistant

professor position for 2003-2004.      Moreover, it is undisputed

that Thomas Halper, the department chair, told Tsaganea well

before his SDHR complaint that he did not "have any chance of

success in the academy," and should "look for a job elsewhere."

(Tsaganea Dep. 49-50.)   Tsaganea did not point to any evidence in

the record that Halper's views were motivated by retaliation.


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          Second, CUNY offered legitimate, non-retaliatory

reasons for not hiring Tsaganea for the 2003-2004 position, and

Tsaganea failed to put forth sufficient evidence that those

reasons were pretextual.   CUNY asserted that it did not rehire

Tsaganea because students had informed Halper that Tsaganea was

using class time to encourage students to support his application

for the full-time position.     CUNY also maintained that Tsaganea's

grading standards were too low.    Out of 150 students, he had

given 93 A's and 39 A-minuses.

          Tsaganea did not deny that he used class time to

request that the students lobby on his behalf.    He only argued

that any such time was minimal.    While reasonable minds might

differ as to the appropriateness of this behavior, there is

nothing in the record to indicate that CUNY's "value judgment"

was a pretext for retaliation.    See Scaria, 117 F.3d at 654-55.

          As for CUNY's assertion that his grading standards were

too low, Tsaganea argued that it was a pretext because he had

been grading the same way for years and Halper had never before
confronted him about it.   In view of the extent of grade

inflation -- 132 of 150 students received an A or A-minus    -- no

reasonable jury could find that this proffered reason was

pretextual.   Moreover, Tsaganea acknowledged that he might have

given the students high grades "to thank [them] for what they did

for [him]."   (Pl.'s Br. 31).    In other words, Tsaganea conceded

that he might have given his students high grades to thank them

for lobbying for him.

          Third, while the temporal proximity of Tsaganea's SDHR

filing and CUNY's decision not to offer him the 2003-2004


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position arguably created an inference of retaliation for the

purpose of establishing a prima facie case, "without more, such

temporal proximity is insufficient to satisfy appellant's burden

to bring forward some evidence of pretext."   El Sayed v. Hilton

Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam).

            Looking at the record as a whole, we conclude that

Tsaganea did not meet his burden of putting forth "sufficient

evidence" that CUNY's decision not to hire him as a substitute

assistant professor for the 2003-2004 school year was motivated

by retaliation.   Van Zant, 80 F.3d at 714.   Indeed, no reasonable

jury could have found that retaliation was a "substantial reason"

for the adverse action.   See Kaytor, 609 F.3d at 553; James, 233

F.3d at 156.

            We have considered appellant's other arguments on

appeal and have found them to be without merit.    Accordingly, the

judgment of the district court is hereby AFFIRMED in its

entirety.

                           FOR THE COURT:
                           CATHERINE O'HAGAN WOLFE, CLERK




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