         09-2238-cv
         Abraham v. New York City Department of Education


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 22 nd day of September, two thousand and
 5       ten.
 6
 7       PRESENT: ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                         Circuit Judges.
11
12
13
14       GEORGE T. ABRAHAM,
15
16                                       Plaintiff-Appellant,
17
18                       -v.-                                                   09-2238-cv
19
20       NEW YORK CITY DEPT. OF EDUCATION,
21
22                                       Defendant-Appellee.
23
24
25
 1   FOR APPELLANT:    STEVEN SLEDZIK, Jones Garneau, LLP,
 2                     Scarsdale, NY.
 3
 4   FOR APPELLEE:     TAHIRIH SADRIEH, (Francis F. Caputo and
 5                     Mordecai Newman, on the brief), New York
 6                     City Law Department, New York City, NY
 7
 8        Appeal from the United States District Court for the
 9   Eastern District of New York (Matsumoto, J.).
10
11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the judgment of the district court be

13   AFFIRMED in part and VACATED and REMANDED in part.

14       George T. Abraham appeals from a judgment of the United

15   States District Court for the Eastern District of New York

16   (Matsumoto, J.), granting summary judgment to his employer,

17   New York City Department of Education.   We assume the

18   parties’ familiarity with the underlying facts, the

19   procedural history, and the issues presented for review.

20       “We review an award of summary judgment de novo, and

21   will uphold the judgment if the evidence, viewed in the

22   light most favorable to the party against whom it is

23   entered, demonstrates that there are no genuine issues of

24   material fact and that the judgment is warranted as a matter

25   of law.” Global Network Commc’ns, Inc. v. City of N.Y., 562

26   F.3d 145, 150 (2d Cir. 2009); see also Fed. R. Civ. P.

27   56(c)(2). Following de novo review in this case, we affirm


                                  2
1    the district court’s grant of summary judgment on Abraham’s

2    claims brought under 42 U.S.C. § 2000e et seq. (“Title VII”)

3    and New York state law and reverse the district court’s

4    grant of summary judgment on Abraham’s claim brought under

5    the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin.

6    Code § 8-101 et seq.

7        For substantially the reasons stated by the district

8    court, we affirm the grant of summary judgment regarding

9    Abraham’s discrimination claims brought under Title VII and

10   New York state law.    Assuming Abraham established a prima

11   facie case of discrimination, Appellee proffered legitimate,

12   non-discriminatory reasons for declining to promote Abraham.

13   Abraham then failed to present a genuine issue of material

14   fact concerning whether Appellee’s explanation is merely

15   pretext for discrimination.

16       Abraham’s assertion that pretext exists because he was

17   eminently more qualified than the selected candidates is

18   unpersuasive.   To survive summary judgment on the strength

19   of his credentials, Abraham must show that his credentials

20   are “so superior to the credentials of the person selected

21   for the job that no reasonable person, in the exercise of

22   impartial judgment, could have chosen the candidate selected


                                    3
1    over the [Appellant] for the job in question.”       Byrnie v.

2    Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir.

3    2001) (quotation marks and citation omitted).       Although

4    Abraham has an engineering degree and extensive experience

5    working for Appellee, neither an engineering background nor

6    seniority were among the mandatory or preferred

7    qualifications for the Regional Contract Manager position.

8    Appellant’s belief that the Regional Contract Manager

9    position required an advanced engineering degree is

10   irrelevant; employers, not the court, determine what

11   qualifications are necessary.       Id.; see also Simms v. Okla.

12   ex rel. Dep't of Mental Health & Substance Abuse Servs., 165

13   F.3d 1321, 1330 (10th Cir. 1999) (“Our role is to prevent

14   unlawful hiring practices, not to act as a ‘super personnel

15   department’ that second guesses employers’ business

16   judgments.”). Likewise, Abraham’s complaints about the

17   interview process itself do not raise a genuine issue of

18   material fact concerning pretext.

19       As for Abraham’s NYCHRL claim, the district court erred

20   in analyzing that claim using the Title VII framework.         New

21   York City Administrative Code § 8-130 provides that the

22   provisions of NYCHRL “shall be construed liberally for the


                                     4
1    accomplishment of the uniquely broad and remedial purposes

2    thereof, regardless of whether federal or New York State

3    civil and human rights laws, including those laws with

4    provisions comparably-worded to provisions of this title,

5    have been so construed.” N.Y.C. Admin Code § 8-130. Given

6    this “one-way ratchet” requiring “an independent liberal

7    construction,” NYCHRL claims should be evaluated separately

8    from their federal and state law counterparts.   Loeffler v.

9    Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009)

10   (quotation marks and citation omitted).

11       We cannot determine whether any genuine issues of

12   material fact remain on Abraham’s NYCHRL claim without

13   applying the proper legal standard.   Remand is appropriate

14   so that the district court can determine, in light of the

15   need for separate analysis, whether to retain supplemental

16   jurisdiction over the NYCHRL claim.   If the district court

17   retains jurisdiction, it should interpret and apply the

18   provisions of that law in the first instance.

19       We have considered Abraham’s remaining contentions on

20   appeal and find them to be without merit.

21       For the foregoing reasons, the judgment of the district

22   court is hereby AFFIRMED in part and VACATED AND REMANDED in


                                  5
1   part.   We remand to the district court to consider Abraham’s

2   NYCHRL claims in a matter consistent with Loeffler.

3
4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6
7
8




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