     11-1406-cv
     Adamczyk v. N.Y. State Dep’t of Corr. Servs.


                                   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 for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 5th day of April, two thousand twelve.
 4
 5   PRESENT:
 6
 7                      ROBERT D. SACK,
 8                      DEBRA ANN LIVINGSTON,
 9                      GERARD E. LYNCH,
10                                      Circuit Judges.
11
12
13
14   MARK ADAMCZYK,
15            Plaintiff-Appellant,
16
17            -v-                                                                No. 11-1406-cv
18
19   NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
20             Defendant-Appellee.
21
22
23
24                                         RICHARD H. WYSSLING, Law Office of Richard H. Wyssling,
25                                         Buffalo, New York, for Plaintiff-Appellant.
26
27                                         LAURA ETLINGER, Assistant Solicitor General (Barbara D.
28                                         Underwood, Solicitor General, and Andrea Oser, Deputy Solicitor
29                                         General, on the brief), for Eric T. Schneiderman, Attorney General
30                                         of the State of New York, Albany, New York, for Defendant-
31                                         Appellee.

                                                            1
 1          Appeal from the United States District Court for the Western District of New York

 2   (Skretny, Chief Judge).

3           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

4    that the judgment entered on March 15, 2011 is AFFIRMED.

 5          Plaintiff-Appellant Mark Adamczyk (“Appellant”) appeals from the District Court’s grant

 6   of summary judgment pursuant to Fed. R. Civ. P. 56 and subsequent dismissal of his case. Appellant

 7   contends principally that the District Court erred in ruling that he failed to raise a genuine issue of

 8   material fact as to his claim of racial discrimination under Title VII of the Civil Rights Act of 1964,

9    42 U.S.C. §§ 2000e et seq.,1 against the Department of Correctional Services of the State of New

10   York (“DOCS”).2 We presume the parties’ familiarity with the underlying facts, the procedural

11   history, and the issues on appeal and revisit those topics below only as necessary to facilitate this

12   discussion.

13          In 2005, Appellant was employed by DOCS at the Wende Correctional Facility (“Wende”)

14   as a corrections lieutenant. On September 22, 2005, an incident occurred at Wende, in the course

15   of which an inmate sustained serious injuries during an altercation with one or more corrections

16   officers. Appellant was the “evening watch commander” at the time this incident occurred, meaning

17   he was the highest ranking officer on duty at Wende after the facility’s administrative officers left



            1
              Appellant’s complaint also included a claim under the New York State Human Rights
     Law, N.Y. Exec. L. art. 15, but on appeal he argues only his Title VII claim. In any event, “[t]he
     standards for liability under [the New York State Human Rights Law are] the same as those
     under the equivalent federal antidiscrimination laws.” Ferraro v. Kellwood Co., 440 F.3d 96, 99
     (2d Cir. 2006).
            2
              Subsequent to the events giving rise to this litigation, DOCS merged with the Division of
     Parole to form the Department of Corrections and Community Supervision. We use the agency’s
     former name here.

                                                       2
 1   for the day. The facility’s superintendent, Anthony Zon (“Zon”), brought the incident to the

 2   attention of DOCS’s Inspector General; an investigation ensued, which resulted in a conclusion by

 3   an Assistant Deputy Inspector General that Appellant had violated an order of his superior and also

 4   made false statements. Peter B. Brown, DOCS’s Director of Labor Relations, issued Appellant a

 5   “Notice of Discipline” on October 14, 2005, indicating that Appellant was to be dismissed from

 6   service in fourteen days unless Appellant filed a grievance. Appellant filed a grievance pursuant to

 7   the collective bargaining agreement (“CBA”) in effect between his union and DOCS, and the case

 8   was referred to an arbitrator. After two days of hearings and receipt of transcripts and live

 9   testimony, the arbitrator found in favor of DOCS and determined that Appellant’s dismissal was the

10   appropriate penalty. DOCS subsequently terminated Appellant. Appellant, who is Caucasian,

11   alleges that his termination was motivated by racial animus, pointing especially to 1) evidence

12   suggesting that Appellant’s supervisor, Captain Martin Kearney (“Kearney”), allegedly has made

13   racially charged comments and has been known to favor African-American employees over

14   Caucasian employees in the past, and 2) the fact that two other officers, both of whom are African-

15   American, involved in the September 22 incident were not terminated.

16          We review a district court’s grant of summary judgment de novo, with “[a]ll evidence

17   submitted on the motion . . . construed in the manner most favorable to the nonmoving party.”

18   Horvath v. Westport Library Ass’n, 362 F.3d 147, 151 (2d Cir. 2004). “Summary judgment is

19   appropriate only if the moving party shows that there are no genuine issues of material fact and that

20   the moving party is entitled to judgment as a matter of law.” Miller v. Wolpoff & Abramson, L.L.P.,

21   321 F.3d 292, 300 (2d Cir. 2003). The moving party is entitled to summary judgment where “the

22   plaintiff has failed to come forth with evidence sufficient to permit a reasonable juror to return a


                                                      3
 1   verdict in his or her favor on” an essential element of a claim on which the plaintiff bears the burden

 2   of proof. In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010). We may affirm

 3   on any ground supported by the record. See Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999).

 4          Under the familiar framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

 5   792 (1973), Appellant first bears the burden of making out a prima facie case of race-based

 6   discrimination against DOCS. See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). “If

 7   he does so, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason

 8   for the employee’s dismissal.” Id. If the employer successfully carries this burden of production,

 9   “the pattern of presumptions and burden shifts established by McDonnell Douglas . . . drops away,

10   and the question in adjudicating the defendants’ motion for summary judgment becomes simply

11   whether the evidence in plaintiff’s favor, when viewed in the light most favorable to the plaintiff,

12   is sufficient to sustain a reasonable finding that [his] dismissal was motivated at least in part by

13   [race] discrimination.” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 114 (2d Cir. 2007).

14          We assume arguendo that Appellant has made out a prima facie case of discrimination on

15   the basis of race, and Appellant concedes that DOCS has “present[ed] evidence in support of its

16   claim that the adverse employment actions [at issue] did not result from a discriminatory motive.”

17   App. Br. at 12. Specifically, DOCS has put forward evidence indicating that Appellant was

18   terminated only after an independent investigation by the Office of the Inspector General, a decision

19   by the Bureau of Labor Relations, and proceedings before a neutral arbitrator. The question thus

20   becomes whether, despite this assertedly non-discriminatory explanation, Appellant has adduced

21   evidence sufficient to permit a reasonable juror to find that racial animus was a motivating factor

22   in his termination.


                                                       4
 1          We have held that “a decision by an independent tribunal that is not itself subject to a claim

 2   of bias will attenuate a plaintiff’s proof of the requisite causal link” between “his termination [and]

 3   motives of . . . discrimination.” Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 119 (2d Cir. 2002).

 4   “Where . . . that decision follows an evidentiary hearing and is based on substantial evidence, the

 5   Title VII plaintiff, to survive a motion for summary judgment, must present strong evidence that the

 6   decision was wrong as a matter of fact–e.g.[,] new evidence not before the tribunal–or that the

 7   impartiality of the proceeding was somehow compromised.” Id. The undisputed evidence in this

 8   case indicates that Appellant was accorded a hearing before an arbitrator involving live testimony

 9   and the submission of transcripts of past testimony. However, among the evidence considered was

10   the testimony of Kearney, on which the arbitrator relied in concluding that Appellant was guilty of

11   the charges made against him. Under the Supreme Court’s recent teaching in Staub v. Proctor

12   Hosp., 131 S. Ct. 1186 (2011), it can be argued that if Kearney’s testimony was “motivated by

13   [discriminatory] animus that is intended by [him] to cause an adverse employment action, and if that

14   [testimony] is a proximate cause of the ultimate employment action,” then DOCS may be liable,

15   notwithstanding the fact that the ultimate decision was made by an arbitrator against whom

16   Appellant has not raised any allegations of racial animus. Id. at 1194 (emphasis omitted) (footnote

17   omitted).

18          We conclude that, notwithstanding Staub, Appellant’s case fails because he has not adduced

19   evidence sufficient to allow a reasonable juror to conclude that Kearney’s testimony was motivated

20   by discriminatory animus “intended . . . to cause an adverse employment action.” Id. (emphasis

21   omitted). Appellant has produced evidence that, if believed, would allow a jury to conclude that

22   Kearney uttered two statements suggesting he may harbor, or may at some point have harbored,


                                                       5
 1   some sense of racial grievance. However, one of these statements was made near the beginning of

 2   Kearney’s tenure at Wende, which began in 1999, and neither statement was made to Appellant or

 3   in the context of the decisionmaking process that resulted in Appellant’s termination. The probative

 4   value of such statements is thus limited, even drawing all inferences in Appellant’s favor. See, e.g.,

 5   Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 150-51 (2d Cir. 2010). Appellant has also submitted

 6   affidavits from several witnesses that purport to describe Kearney’s favorable treatment of African-

 7   American employees. Missing from these affidavits, however, are facts detailing a single incident

 8   in which Kearney treated an African-American employee favorably and treated a similarly-situated

 9   employee of another race unfavorably. Therefore, Appellant’s evidence fails to support the

10   conclusion that Kearney’s favorable treatment of the employees in question was motivated by race,

11   as opposed to any of the myriad other motivations that prompt supervisors to treat employees

12   leniently. Furthermore, there is no evidence that Kearney instigated the disciplinary inquiry, and

13   even if a reasonable factfinder could conclude that his testimony against Adamczyk was false, he

14   had ample non-racial motivation to testify as he did, in order to insulate himself from blame for the

15   inmate’s injuries and to shift responsibility onto his subordinates, including Appellant. Thus,

16   Appellant has failed to produce evidence that would permit a reasonable juror to find that Kearney

17   harbored racial animus and that such animus was a motivating factor in an alleged decision on his

18   part to give false testimony.

19          Appellant also argues that the fact that two African-American corrections officers involved

20   in the September 22 incident were not terminated after their proceedings before a different arbitrator

21   indicates that Appellant’s termination was racially motivated. We have held that “[a] showing that

22   similarly situated employees belonging to a different racial group received more favorable treatment


                                                       6
1    [than the plaintiff] can . . . serve as evidence that the employer’s proffered legitimate, non-

2    discriminatory reason for the adverse job action was a pretext for racial discrimination.” Graham

3    v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000). However, Appellant has failed to adduce

4    evidence to enable a reasonable juror to find that he and the officers in question were similarly

5    situated. Specifically, while Appellant had previously received three notices of discipline–a factor

6    that loomed large in the arbitrator’s unfavorable decision–no evidence has been submitted that either

 7   of the other two officers involved had ever received a notice of discipline.3 Moreover, the Appellant

 8   and the two officers were charged with different forms of misconduct, and the different results in

 9   their cases were determined by different arbitrators. Appellant, who was higher-ranking than the

10   two other officers, was charged with insubordination for violating a direct order from Kearney that

11   the inmate was not to be allowed out of his cell, while the two officers were charged with using

12   excessive force against the inmate.4 The arbitrator in Appellant’s case determined that Appellant

13   had been insubordinate, crediting Kearney’s testimony that the order was given over Appellant’s

14   testimony that it was not. By contrast, the other arbitrator found that Kearney’s order was “unclear,”

15   and further concluded that the two officers’ testimony that the inmate initiated the physical

16   altercation was more credible than the inmate’s testimony that they used excessive force against him.

17   Appellant presents no evidence suggesting that Kearney’s alleged racial animus caused the two

18   arbitrators to take differing views of his order. He has thus failed to show that he was similarly

19   situated to the two officers who faced different charges in their arbitration proceedings. See

            3
              Rather, the evidence submitted indicates that one of the officers had been disciplined on
     a single occasion for leaving his post. The record is devoid of evidence that the other officer
     involved in the September 22 incident had ever been the subject of disciplinary proceedings.
            4
             Both Appellant and the other two officers were also charged with giving false
     testimony.
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1   Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (“To be ‘similarly situated,’

2   the individuals with whom [Appellant] attempts to compare h[im]self must be similarly situated in

3   all material respects.”).

4           To the extent Appellant raises other arguments with respect to the judgment below, we have

5   considered them and reject them as meritless.

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

7                                                       FOR THE COURT:
8                                                       Catherine O’Hagan Wolfe, Clerk
9




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