         09-2611-cv
         Melie v. EVCI/TCI College Administration, 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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19 th day of April, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                AMALYA L. KEARSE,
 9                GUIDO CALABRESI,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       ORA MELIE,
14
15                    Plaintiff-Appellant,
16
17                    -v.-                                         09-2611-cv
18
19       EVCI/TCI COLLEGE ADMINISTRATION, PETER
20       SLATER, SAYED AKHAVI and NANNETTE
21       JACOBS,
22
23                Defendants-Appellees.
24       - - - - - - - - - - - - - - - - - - - -X
25
26       FOR APPELLANT:                         Anthony C. Emengo, on the brief,
27                                              Anthony Emengo, P.C.,
28                                              Williamsburg, NY.
29
30       APPEARING FOR APPELLEES:               Marjorie Kaye, Jr. (John A.
31                                              Snyder and Paul P. Parisi, on
 1                              the brief), Jackson Lewis LLP,
 2                              New York, NY.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Baer, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Plaintiff-appellant Ora Melie appeals from a judgment
12   of the United States District Court for the Southern
13   District of New York (Baer, J.), which granted defendants-
14   appellees’ motion for summary judgment. We assume the
15   parties’ familiarity with the underlying facts, the
16   procedural history, and the issues presented for review.
17
18        “We review an award of summary judgment de novo, and
19   will uphold the judgment if the evidence, viewed in the
20   light most favorable to the party against whom it is
21   entered, demonstrates that there are no genuine issues of
22   material fact and that the judgment is warranted as a matter
23   of law.” Global Network Commc’ns, Inc. v. City of New York,
24   562 F.3d 145, 150 (2d Cir. 2009); see also Fed. R. Civ. P.
25   56(c)(2). Following de novo review in this case, we affirm
26   the district court’s grant of summary judgment.
27
28        As the district court determined, all of Melie’s
29   discrimination and retaliation claims under Title VII of the
30   Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
31   seq. (“Title VII”) were time-barred, except for the one
32   claim presented in Melie’s February 27, 2007 Equal
33   Employment Opportunity Commission (“EEOC”) charge not
34   previously presented in his September 25, 2006 EEOC charge.
35   See Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d
36   827, 828 (2d Cir. 1986) (per curiam) (requiring that where
37   the allegations presented in serial EEOC charges are
38   identical, a plaintiff must commence an action within 90
39   days of receiving the first EEOC right-to-sue letter); see
40   also 42 U.S.C. § 2000e-5(f)(1) (requiring a plaintiff to
41   commence an action within 90 days of receiving an EEOC
42   right-to-sue letter).
43
44       For substantially the reasons stated by the district

                                  2
 1   court, we affirm the grant of summary judgment regarding
 2   Melie’s discrimination claims brought under 42 U.S.C. § 1981
 3   (“Section 1981”) and the New York State Human Rights Law,
 4   N.Y. Exec. Law § 290 et seq. (“NYSHRL”). Even assuming that
 5   Melie could establish a prima facie case of discrimination,
 6   defendants proffered legitimate, non-discriminatory reasons
 7   for each of the purported adverse employment actions and
 8   Melie failed to present a genuine issue of material fact as
 9   to whether the reasons were pretexts for discrimination.
10
11        For substantially the reasons stated by the district
12   court, we affirm the grant of summary judgment regarding
13   Melie’s retaliation claims brought under Title VII, Section
14   1981, and the NYSHRL. Melie cannot establish a prima facie
15   case for his first reduction-based retaliation claim because
16   he was first reduced to part-time status in August 2006,
17   before any EEOC activity. * Even assuming Melie could
18   establish a prima facie case for his second reduction-based
19   retaliation claim, based on a reduction in May 2007, after
20   he had filed EEOC complaints, or for his removal-based
21   retaliation claims, defendants proffered legitimate, non-
22   retaliatory reasons for again temporarily moving Melie to
23   part-time status as well as for Melie’s removal as a soccer
24   coach and as an open house representative. Melie failed to
25   present a genuine issue of material fact as to whether the
26   reasons were pretexts for retaliation.
27
28        Melie’s assertion that a Technical Career Institutes,
29   Inc. (“TCI”) official stated that Melie was excluded from
30   participating in the open house because of his complaints
31   against TCI does not present a genuine issue of material
32   fact to be tried. Melie acknowledged in his deposition that
33   the purpose of faculty participation in an open house was to

         *
           Moreover, union grievances that do not complain of
     discrimination do not constitute a protected activity--the
     first element of the prima facie case. See Cruz v. Coach
     Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (“The term
     ‘protected activity’ refers to action taken to protest or
     oppose statutorily prohibited discrimination.”); see also 42
     U.S.C. § 2000e-3(a) (“It shall be an unlawful employment
     practice for an employer to discriminate against any of his
     employees . . . because he has opposed any practice made an
     unlawful employment practice by this subchapter . . . .”).

                                  3
 1   promote TCI and to persuade students to enroll and that he
 2   had repeatedly criticized TCI. “‘A question of retaliation
 3   is not raised by a removal for conduct inconsistent with
 4   [the employee’s] duties, unless its use as a mere pretext is
 5   clear.’” Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000)
 6   (quoting Pendleton v. Rumsfeld, 628 F.2d 102, 108 (D.C. Cir.
 7   1980)). Melie has proffered no evidence from which a
 8   rational juror could infer that his removal from the role of
 9   recruiter because of his criticisms was intended to punish
10   him rather than to preserve TCI’s ability to attract
11   students.
12
13        The Local Civil Rights Restoration Act of 2005, N.Y.C.
14   Local Law No. 85 (2005) (“Restoration Act”), requires that
15   claims brought under the New York City Human Rights Law,
16   N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”), be evaluated
17   separately from counterpart claims brought under federal and
18   state law. See Loeffler v. Staten Island Univ. Hosp., 582
19   F.3d 268, 278 (2d Cir. 2009) (explaining that the
20   Restoration Act “abolish[ed] ‘parallelism’ between the
21   [NYCHRL] and federal and state anti-discrimination law”);
22   Restoration Act § 7 (amending Section 8-130 of chapter one
23   of title eight of the administrative code of the City of New
24   York to read: “The provisions of this title shall be
25   construed liberally for the accomplishment of the uniquely
26   broad and remedial purposes thereof, regardless of whether
27   federal or New York State civil and human rights laws,
28   including those laws with provisions comparably-worded to
29   provisions of this title have been so construed.”); id. § 1
30   (“Interpretations of New York state or federal statutes with
31   similar wording may be used to aid in interpretation of [the
32   NYCHRL], viewing similarly worded provisions of federal and
33   state civil rights laws as a floor below which the [NYCHRL]
34   cannot fall . . . .”).
35
36        Prior to the issuance of our decision in Loeffler, the
37   district court evaluated Melie’s NYCHRL discrimination and
38   retaliation claims under the same standard as Melie’s
39   federal and state counterpart claims. Under the Restoration
40   Act and Loeffler, the NYCHRL claims should have been
41   evaluated separately from their federal and state
42   counterpart claims. However, we nevertheless affirm the
43   grant of summary judgment on Melie’s NYCHRL discrimination
44   and retaliation claims because Melie’s failure to present a

                                  4
 1   genuine issue of material fact regarding pretext dooms these
 2   claims under any standard.
 3
 4        We have considered all of Melie’s contentions on this
 5   appeal and have found them to be without merit.
 6   Accordingly, the judgment of the district court is hereby
 7   AFFIRMED.
 8
 9                              FOR THE COURT:
10                              CATHERINE O’HAGAN WOLFE, CLERK
11




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