12-0857-cv(L)
Govori v. Goat Fifty, L.L.C.
                               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, 40 Foley Square, in the City of New York, on the
26th day of March, two thousand thirteen.

Present:
                 ROBERT D. SACK,
                 PETER W. HALL,
                 DEBRA ANN LIVINGSTON,

                        Circuit Judges.
____________________________________________________

Elira Govori,

                          Plaintiff – Appellant – Cross-Appellee,

                 v.                                                    Nos.   12-0857-cv (Lead)
                                                                              12-0861-cv (XAP)

Goat Fifty, L.L.C., DBA Nelson Blue Bar and Grill, Frank Casano, Individually, as Owner,

                          Defendants – Appellees – Cross-Appellants.

____________________________________________________

FOR APPELLANT:                           NEAL BRICKMAN, The Law Offices of Neal Brickman,
                                         P.C., New York, New York.

FOR APPELLEES:                LAWRENCE CARUSO GLYNN, Caruso Glynn, LLC, Fresh
                              Meadows, New York.
____________________________________________________

                                                   1
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Cote, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Elira Govori (“Govori”) appeals from the judgment of the district court

entering summary judgment in favor of Defendants Goat Fifty, L.L.C. (“Goat Fifty”), corporate

owner of the Nelson Blue Bar and Grill (“Nelson Blue”), and individual owner Frank Casano

(collectively “Defendants”) on Govori’s claim of gender discrimination asserted under Title VII

and the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), New York State Executive Law §

296(1), and New York City Administrative Code § 8-107(1). Defendants cross-appeal from the

judgment of the district court and its order denying Defendants’ earlier motion to dismiss and

concluding that Plaintiff’s claim of gender discrimination was within the ambit of the Pregnancy

Discrimination Act based on Govori’s allegations that Nelson Blue fired Govori because she

decided to undergo infertility treatment in the hope of becoming pregnant. See 42 U.S.C.

§ 2000e(k) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to,

because of or on the basis of pregnancy, childbirth, or related medical conditions; and women

affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all

employment-related purposes . . . .”); see also Saks v. Franklin Covey Co., 316 F.3d 337, 343-44

(2d Cir. 2003).

       We affirm the district court’s decision granting Defendants’ motion for summary

judgment, and we decline to consider the cross-appeal because, even if the Pregnancy

Discrimination Act covers the type of claim Govori has advanced, Defendants have presented

legitimate, non-discriminatory reasons for Govori’s termination based on her poor work


                                                 2
performance in the months prior to her termination, which Govori failed to counter with

admissible evidence tending to show that the reasons tendered were pretextual. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal, and we discuss these only as necessary to explain our decision to affirm.

         We review de novo a grant of summary judgment, McCarthy v. Dun & Bradstreet Corp.,

482 F.3d 184, 202 (2d Cir. 2007), and we “will uphold the judgment if the evidence, viewed in

the light most favorable to the party against whom it is entered, demonstrates that there are no

genuine issues of material fact and that the judgment is warranted as a matter of law,” Global

Network Commc’ns, Inc. v. City of New York, 562 F.3d 145, 150 (2d Cir. 2009). We are

“required to resolve all ambiguities and draw all permissible factual inferences in favor of the

party against whom summary judgment is sought,” Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432

F.3d 428, 433 (2d Cir. 2005) (internal quotation marks omitted), but we can affirm on any

ground appearing in the record, McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir.

2010).

         “At the summary-judgment stage, properly exhausted Title VII claims are ordinarily

analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), and its progeny.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.

2008). First, Govori “must carry the initial burden under the statute of establishing a prima facie

case of [gender] discrimination,” McDonnell Douglas, 411 U.S. at 802, which requires Govori to

“show that: 1) [s]he belonged to a protected class; 2) [s]he was qualified for the position; 3) [s]he

suffered an adverse employment action; and 4) the adverse employment action occurred under

circumstances giving rise to an inference of discriminatory intent,” Terry v. Ashcroft, 336 F.3d

128, 138 (2d Cir. 2003). Second, if Govori meets this initial burden, “[t]he burden then must



                                                  3
shift to the employer to articulate some legitimate, nondiscriminatory reason for the [employer’s

actions].” McDonnell Douglas, 411 U.S. at 802. Third, if the employer meets this burden, the

burden then shifts back to Govori to show “pretext,” id. at 804-805, and, “‘to defeat summary

judgment[,] . . . the plaintiff’s admissible evidence must show circumstances that would be

sufficient to permit a rational finder of fact to infer that the defendant’s employment decision

was more likely than not based in whole or in part on discrimination,’” Terry, 336 F.3d at 138

(quoting Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)).

       Assuming, as the district court did, that Govori has established a prima facie case of

gender discrimination, we hold that Defendants have demonstrated a non-pretextual reason for

termination of Govori’s employment. That is, Defendants dismissed Govori because of her sub-

par customer service that included ignoring her tables, her quarrelsome relations with other

employees, and her refusal to complete menial tasks required of servers. Govori argues that we

must view these reasons as pretextual, but we do not agree. Our review of the evidence

submitted, viewed in the light most favorable to Govori, leads us to conclude that Defendants

offered legitimate and non-discriminatory reasons for Govori’s termination from Nelson Blue,

and no reasonable jury could view them otherwise.

       First, any temporal proximity between Govori’s announcement of her IVF injections and

her subsequent firing does not by itself raise a genuine issue of pretext. As this Circuit has

explained in the retaliation context, while temporal proximity between events may give rise to a

prima facie case of discrimination, “such temporal proximity is insufficient to satisfy [plaintiff’s]

burden to bring forward some evidence of pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d

931, 933 (2d Cir. 2010) (per curiam). We think this reasoning is equally applicable to the case at

hand, where Govori has pointed to proximity between a statement purportedly revealing her



                                                  4
protected status and an adverse employment action. Moreover, the evidence of such temporal

proximity in this case is weak. Though Govori testified that she was fired shortly after informing

her managers that she had begun in-vitro fertilization (“IVF”), it is undisputed that those

managers had already known for months that Govori wanted to become pregnant and was

considering IVF. Govori’s March 11 statement announced, at most, her commencement of but

one more step toward her previously announced but still uncertain goal of conceiving a child.

       Nor can the alleged comment of daytime bar manager Michelle Gervais about Govori

“have[n] chosen another path,”1 which she made during the phone conversation in which she

fired Govori, support an inference of discriminatory intent. Govori contends that Gervais’s

alleged mention of “another path” was actually a reference to the term “mommy track.” See

Tamar Lewin, ‘Mommy Career Track’ Sets Off a Furor, N.Y. Times, March 8, 1989, at A18.

While this may be a possible interpretation of Gervais’s remark, we do not think it is a plausible

one. See Sassaman v. Gamache, 566 F.3d 307, 313 (2d Cir. 2009) (“The choice between

plausible interpretations of [a supervisor’s] remarks is a question of fact to be resolved by a

jury.”) (emphasis added). The alleged remark does not contain any variant of the word

“mommy,” and we note that nearly all the relevant articles cited in Govori’s briefs use the phrase

“mommy track” rather than “mommy path.” If there is any ambiguity about whether Gervais

was referring to pregnancy and motherhood, it appears “only after extensive linguistic

contortion” of her alleged comment. See Joyce v. Curtiss-Wright Corp., 171 F.3d 130, 134 (2d

Cir. 1999). This is all the more true given that Gervais and Govori were friends at the time of the

remark, and “choosing another path” is the kind of euphemism that a manager might plausibly

use as an attempt to soften the blow of firing an employee with whom she was close.


1
 Gervais has a different recollection of the statement, but in reviewing the grant of summary
judgment we consider only Govori’s articulation of it.

                                                  5
       Accordingly, we view the district court’s statement that Gervais’s comment was “too

ambiguous” to mean only that there was not enough evidence for a reasonable jury to conclude

that Gervais was referring to Govori’s possible pregnancy. It does not mean, as Govori

contends, that the district court impermissibly acted as an ultimate finder of fact. To the

contrary, the court made the perfectly appropriate determination that no reasonable finder of fact

could conclude from both Gervais’s remark and other evidence in the record that Govori had met

her burden of proving pretext.

       Turning to Govori’s remaining contentions, Govori argues that Defendants have offered

“shifting” justifications for her termination, which supports an inference of discriminatory intent,

and that Defendants never reported any problems to Govori or gave her a warning, which Govori

contends would be expected if her performance was actually as poor as Defendants now assert it

was. A review of the evidence presented during Gervais’ EEOC interview, the affidavits in

support of Defendants’ motion for summary judgment, and Defendants’ positions advanced on

appeal establishes, however, that Defendants have consistently pointed to Govori’s poor work

performance as the reason for her termination and that Defendants have not shifted positions.

Considering the testimony of managers Diane Honeywell and Paul Morgan, day bar manager

Gervais, and fellow day servers Emily Slater and Gary Neishloss, Defendants clearly have

presented sufficient evidence to show that Govori, who worked as a day server, had a history of

poor customer service, of conflict with other employees, and of repeated failures to perform

work that other servers and managers testified was required of employees at Nelson Blue,

particularly in the few months preceding her termination in March 2010. Govori’s speculation

that she should have received a warning if her performance was as poor as Defendants say is not




                                                 6
sufficient to meet her burden on summary judgment to overcome Defendants’ proof or to

demonstrate pretext. See Terry, 336 F.3d at 138.

       Govori argues that none of Defendants’ proffered justifications, except for the customer

incident, were “fireable” offenses and further that the customer incident never occurred because

the customer later testified he did not recall it. At the time of Govori’s firing, Nelson Blue did

not specify what constituted a “fireable” offense, although several managers testified that a

confrontation with a customer would certainly qualify. While the customer, Robert Mullan, did

testify that he did not remember that Govori had been rude to him, the decision to fire Govori

because Nelson Blue believed that Govori had been rude to a customer does not raise any

inference that Nelson Blue’s decision ultimately to fire Govori was motivated by a

discriminatory intent.

       We have considered all of Govori’s remaining arguments and find them to be without

merit. Because we affirm the district court’s judgment on the ground that Defendants had a

legitimate, non-discriminatory reason for terminating Govori’s employment, which Govori has

failed to rebut, we do not decide whether the Pregnancy Discrimination Act would reach the

challenged conduct alleged in Govori’s complaint. The judgment of the district court is

AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                  7
