08-5575-cv
Tucker v. New York City


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 10 th day of May, two thousand ten.

PRESENT:            REENA RAGGI,
                    PETER W. HALL,
                              Circuit Judges.*

--------------------------------------------------------------------------------------
FRANKLIN TUCKER,
                                                   Plaintiff-Appellant,
                               v.                                                        No. 08-5575-cv

NEW YORK CITY, NEW YORK CITY
DEPARTMENT OF EDUCATION, JOEL KLEIN, in
his official capacity, as an aider and abettor,
                                     Defendants-Appellees.
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APPEARING FOR APPELLANT:                                      PHILIP A. WELLNER (Katherine L. Pringle,
                                                              Andrew W. Schilling, on the brief), Friedman
                                                              Kaplan Seiler & Adelman LLP, New York, New
                                                              York.




          *
       Judge Rosemary S. Pooler, originally assigned to this panel, did not participate in the
consideration of this appeal. The remaining two members of the panel, who are in
agreement, have determined this matter in accordance with Second Circuit Internal Operating
Procedure E(b).
APPEARING FOR APPELLEES:                   RONALD        E. STERNBERG, Assistant
                                           Corporation Counsel (Leonard Koerner, on the
                                           brief), for Michael A. Cardozo, Corporation
                                           Counsel of the City of New York, New York,
                                           New York.

       Appeal from the United States District Court for the Southern District of New York

(Gerard E. Lynch, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on October 1, 2008, is AFFIRMED.

       Plaintiff Franklin Tucker,1 an African-American male, appeals from an award of

summary judgment in favor of defendants New York City, the New York City Department

of Education, and Joel Klein, in his official capacity as schools chancellor (collectively, the

“City”), on his claims of race discrimination under 42 U.S.C. § 1981 and Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and First Amendment

retaliation.2 We review an award of summary judgment de novo, and we will affirm only if

the record, viewed in the light most favorable to the nonmoving party, reveals no genuine

issue of material fact. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986); Ollman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d




       1
        Tucker proceeded pro se in the district court. We appointed pro bono counsel for
this appeal.
       2
        The district court also entered summary judgment on Tucker’s claims under 42
U.S.C. § 1985, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and New
York State and City Human Rights Laws. Tucker does not challenge these rulings on appeal.

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Cir. 2008). In doing so, we assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

       1.     Race Discrimination Claim

       Tucker submits that the district court erred in rejecting as a matter of law his claim of

a discriminatory failure to hire him as the Region 10 drug director. Even assuming that

Tucker raised this claim in the district court, see Turkmen v. Ashcroft, 589 F.3d 542, 549 n.6

(2d Cir. 2009) (noting that issues not raised in district court are deemed waived), we are not

persuaded.

       We analyze both Title VII and § 1981 race discrimination claims under the familiar

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987). The City

does not dispute that Tucker made out a prima facie case of race discrimination because he

is a qualified African American who applied for the position ultimately given to a non-

African American.       The City contends, however, that it articulated a legitimate,

nondiscriminatory reason for not hiring Tucker and that Tucker failed to adduce evidence of

pretext. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); accord

Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009).




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              a.      The City Articulated a Legitimate, Non-discriminatory Reason for Its
                      Decision Not To Hire Tucker

       The City submits that Tucker performed poorly during an interview with Victor

Rodriguez, director of student placement, youth, and family support services in that he (1)

“did not demonstrate a leadership style that [Rodriguez] felt would make him successful in

handling . . . multiple responsibilities”; (2) responded to hypothetical questions in a manner

indicating “a non-inclusive leadership style,” suggesting that he would not “approach[]

problems in [a] collaborative style”; (3) “did not embrace any alternative approach to

problem-solving that involved discussion and feedback, nor did he seem to embrace a

leadership style emphasizing consensus building or teamwork”; and (4) “seemed

disinterested in making follow-up visits to . . . counselors in the field or otherwise

participating in on-site program assessments.” Rodriguez Decl. ¶ 8. Further, Rodriguez’s

later discussion with Superintendent Dennis Pradier, under whom Tucker previously served

as an interim-acting drug director, revealed that Tucker was “difficult to work with because

of his abrasive style.” Id. ¶ 10.

       On appeal, Tucker submits that these reasons are insufficient to satisfy the City’s

intermediate burden of production because they are subjective. Our precedent is to the

contrary. “There is nothing unlawful about an employer’s basing its hiring decision on

subjective criteria, such as the impression an individual makes during an interview.” Byrnie

v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104 (2d Cir. 2001) (internal quotation

marks and alteration omitted); see also id. at 106 (“An employer is entitled to arrive at a

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subjective evaluation of a candidate’s suitability for a position.”). Moreover, the City’s

desire to hire a drug director with an inclusive and collaborative leadership style is not the

sort of “wholly subjective and unarticulated standard[],” Knight v. Nassau County Civil Serv.

Comm’n, 649 F.2d 157, 161 (2d Cir. 1981), or “vague or conclusory averment[] of good

faith,” Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985), that would not “frame the factual

issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to

demonstrate pretext,” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 255-56; accord

Meiri v. Dacon, 759 F.2d at 997.          We, therefore, conclude that the City carried its

intermediate burden of production.3

               b.     Tucker Did Not Adduce Evidence Showing that the City’s Non-
                      discriminatory Reason Was Pretextual

       Tucker contends that a jury could infer pretext based on his conclusory assertions of

(1) procedural irregularities in the hiring process, and (2) the allegedly inferior qualifications

of Vivian Figueroa, who was ultimately chosen for the drug director position. We are not

persuaded.




       3
        Byrnie is not to the contrary. There, we acknowledged that evidence showing that
defendants relaxed the degree requirements for a position, failed to comply with a procedure
barring consideration of an application before it was complete, offered implausible
explanations for choosing a less qualified candidate, and subjectively evaluated interview
performance “might not have been sufficient in itself to defeat summary judgment,” but we
concluded that such evidence could support a finding of discrimination because a jury might
draw an adverse inference based on the defendants’ destruction of relevant evidence. Byrnie
v. Town of Cromwell, Bd. of Educ., 243 F.3d at 110-11. By contrast, Tucker has adduced
no evidence raising a genuine issue regarding the City’s credibility.

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       Even assuming that the City departed from a standard protocol of maintaining

interview notes and notifying candidates of their non-selection, that, by itself, would be

insufficient to raise an inference of discrimination in this case. See Weinstock v. Columbia

Univ., 224 F.3d 33, 45 (2d Cir. 2000) (affirming summary judgment on Title VII claim when

alleged procedural irregularities were unrelated to sex, did not affect final employment

decision, and revealed “no evidence of pretext”). Further, the record shows that, like Tucker,

Figueroa previously served as an interim-acting drug director and held the appropriate license

for the position.4 In such circumstances, the difference Tucker alleges in their qualifications

would not support a finding of pretext because the City did not assert that it hired a better

qualified applicant, but rather that it hired a more collaborative one. Cf. Ash v. Tyson Foods,

Inc., 546 U.S. 454, 457 (2006) (noting that plaintiff “might seek to demonstrate that

respondent’s claim to have promoted a better qualified applicant was pretextual by showing



       4
         Tucker’s appellate argument that this license evidence does not satisfy the business
records exception of Federal Rule of Evidence 803(6) was not raised in the district court, and
thus we deem it waived. See Turkmen v. Ashcroft, 589 F.3d at 549 n.6; see also 10B Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2738,
at 372-73 (3d ed. 1998) (“A party must move to strike an affidavit that violates Rule 56(e).
The failure to do so will result in the waiver of the objection and, in the absence of ‘a gross
miscarriage of justice,’ the court may consider the defective affidavit.” (footnotes omitted)).
In any event, we identify no miscarriage of justice in the district court’s consideration of the
challenged evidence. The City produced copies of Figueroa’s license history accompanied
by a sworn declaration of the director of the Office of Supervisory Services testifying that
her statements were made “based on personal knowledge and a review of the books and
records of the [Department of Education].” Labozzetta Decl. ¶ 4. Thus, Figueroa’s licensing
history was admissible evidence at trial. See Fed. R. Civ. P. 56(e)(1); Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 312-13 (2d Cir. 2008) (holding adequate
foundation for business records exception laid in similar affidavit).

                                               6
that []he was in fact better qualified than the person chosen for the position”). Tucker has

adduced no evidence showing that he exhibited the sort of collaborative leadership skills the

City sought for the position.

       Accordingly, the district court properly entered summary judgment on Tucker’s race

discrimination claim.

       2.     First Amendment Retaliation Claim

       Tucker also challenges the award of summary judgment on his First Amendment

retaliation claim. To pursue this claim, Tucker had to adduce evidence that: “(1) his speech

was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a

causal connection exists between his speech and the adverse employment determination

against him, so that it can be said that his speech was a motivating factor in the

determination.” Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Upon such a showing,

the burden would shift to defendant to demonstrate “that it would have taken the same

adverse employment action ‘even in the absence of the protected conduct.’” Id. (quoting Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

       The district court correctly explained in some detail why most of Tucker’s speech was

not constitutionally protected and the deficiencies in his attempt to demonstrate the requisite

causal connection. Tucker contends that a jury could infer a causal connection because the

City’s hiring decision occurred within six or seven months of his protected speech. See

Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d



                                              7
Cir. 2001) (“In this Circuit, a plaintiff can indirectly establish a causal connection to support

a . . . retaliation claim by showing that the protected activity was closely followed in time by

the adverse [employment] action.” (internal quotation marks omitted; alteration in original)).

We need not discuss this argument at length because even if we were to resolve it in Tucker’s

favor, he would not be entitled to relief on appeal because he cannot show that hiring

decisionmakers were aware of his only conceivably protected speech (the letter to

Modzeleski) or that the City’s evidence that it would not have hired Tucker “even in the

absence of the protected conduct,” Morris v. Lindau, 196 F.3d at 110, was a pretext for

retaliation. As noted, the City offered evidence that it chose Figueroa over Tucker because

she had a more collaborative leadership style that he failed to demonstrate in either his job

interview or past employment. Thus, the district court correctly concluded that Tucker’s First

Amendment claim fails for the same reasons that his race discrimination claim fails. See

Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 253 (2d Cir. 2006) (affirming

summary judgment for defendants on First Amendment retaliation claim when,

notwithstanding protected speech, officer selected for promotion “interviewed better” than

officer turned down).

       We have considered Tucker’s other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

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




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