13-4492
Francis Mathew v. North Shore-Long Island Jewish Health System, Inc., Andreas Nicou

                              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
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 13th day of November, two thousand fourteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges.
____________________________________________________________

FRANCIS MATHEW,

                 Plaintiff-Appellant,

                 -v-                                           No. 13-4492

NORTH SHORE - LONG ISLAND JEWISH HEALTH SYSTEM, INC., ANDREAS NICOU,

            Defendants-Appellees.*
____________________________________________________________

For Plaintiff-Appellant:                DAVID ZEVIN, (Sang J. Sim, on the brief), New York, New
                                        York


For Defendants-Appellees:               PETER D. STERGIOS, (M. Christopher Moon, on the brief)
                                        New York, New York




*
    The Clerk is directed to amend the caption as set forth above.


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      Appeal from the United States District Court for the Eastern District of New York
(Weinstein, J.).


       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is hereby AFFIRMED. Plaintiff-

Appellant Francis Mathew appeals from an October 23, 2013 order granting summary judgment

in favor of Defendant-Appellees North Shore-Long Island Jewish Health System, Inc. and

Andreas Nicou (collectively, “Appellees”). Mathew asserts that he was terminated from his

employment at the Long Island Jewish Medical Center because he suffered from a hernia, in

violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., the New York

State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290, et seq., and the New York City

Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8–107. Mathew asserts in the

alternative that he was terminated because of his age, in violation of the NYSHRL and

NYCHRL. We assume the parties’ familiarity with the relevant facts, procedural history of the

case, and the issues presented for review.

       We review orders granting summary judgment de novo and focus on whether the district

court properly concluded that there was no genuine dispute as to any material fact and that the

moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson,

LLP, 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate “[w]here the record

taken as a whole could not lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We are required to

resolve all ambiguities and draw all inferences in favor of the nonmovant. See Nationwide Life

Ins. Co. v. Bankers Leasing Assoc., 182 F.3d 157, 160 (2d Cir. 1999).

       We begin with Mathew’s claim that Appellees retaliated against him for his exercise of

rights under the FMLA. FMLA retaliation claims are evaluated within the McDonnell Douglas


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burden-shifting framework. Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004).

Applying this framework, we find that even assuming Mathew set forth a prima facie case of

retaliation, he has not provided any evidence that the Appellees’ justification for firing him was

pretextual. First, although Mathew contends that he did not falsify time records, “we are

decidedly not interested in the truth of the allegations against plaintiff” when evaluating pretext.

McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006). Instead,“[w]e are

interested in what motivated the employer.” Id. (internal quotation omitted). Here, Mathew

concedes that at his December 5 and December 8, 2008 meetings with Nicou, he admitted to

submitting inaccurate time records. Even if this admission was inaccurate or incomplete, it

provided the Appellees with a sound basis to conclude that Mathew had stolen time, and thus

undercuts any inference that Mathew’s termination was motivated by his hernia.

       Second, Mathew asserts that, even if he did misrecord his time, the Appellees selectively

enforced their timekeeping policies against him because of his hernia. To establish pretext based

on selective enforcement, Mathew must show that he was treated differently than other

“similarly situated” employees. See Henry v. Daytop Vill., Inc., 42 F.3d 89, 96-97 (2d Cir. 1994)

(analyzing a selective enforcement claim in the Title VII context). Here, Mathew has not

identified any other similarly situated employees—that is, employees who admitted submitting

erroneous timesheets—much less shown that they were treated more leniently than he was.

Accordingly, because we conclude that Mathew has not provided any evidence showing that the

Appellees’ rationale for terminating him was pretextual, we affirm the district court’s grant of

summary judgment on this claim.

       We affirm the remainder of the district court’s order for substantially the same reasons.

Turning to Mathew’s claim for interference with his FMLA rights, to prevail on this claim




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Mathew must show that the Appellees “considered his FMLA leave and request to return a

negative factor in [their] decision to terminate him.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d

161, 176 (2d Cir. 2006). Because Mathew has not introduced any evidence that the Appellees

fired him for any reason other than his erroneous timesheets, he has not shown that the Appellees

considered his hernia “a negative factor in [their] decision to terminate him.” Id. The district

court correctly granted summary judgment on this claim.

       Similarly, Mathew’s claims for age and disability discrimination under the NYSHRL are

evaluated under the same McDonnell Douglas framework as FMLA retaliation claims. See

Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000). Accordingly, because Mathew

has not established evidence of pretext, his NYSHRL claims fail as well.

       Finally, to succeed on his NYCHRL age and disability discrimination claims, Mathew

much show that he “has been treated less well at least in part ‘because of’” either his hernia or

his age. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013)

(quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39 (App. Div. 2009)) (emphasis in

original). Again, however, Mathew has not proffered evidence that the Appellees terminated him

“because of” any reason other than his apparently falsified timesheets. The Appellees were

entitled to summary judgment on these claims.

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

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:

                                              CATHERINE O’HAGAN WOLFE, CLERK




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