    10-4472
    Zuk v. Onondaga County


                             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 TO 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
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
    the 18th day of June, two thousand twelve.

    PRESENT:

                    GUIDO CALABRESI,
                    JOSÉ A. CABRANES,
                    RAYMOND J. LOHIER, Jr.,

                            Circuit Judges.
    _____________________________________

    Vladimir Zuk,

                             Plaintiff-Appellant,

                    v.                                                   No. 10-4472-cv

    Onondaga County, Kevin E. Walsh,
    Sheriff-Onondaga County Sheriff’s Office, as joint
    public employer and in his official capacity, Esteban
    Gonzalez, in his official capacity,

                             Defendants-Appellees,

    Esteban Gonzales, Captain, Onondaga County
    Justice Center, Vincent Wasilewski, Assistant Chief,
    Onondaga County Justice Center, Kevin Brisson,
    Captain, Onondaga County Justice Center,
Thomas Metz, Lieutenant-Personnel Section,
Anthony Callisto, former Chief-Custody Division
(Retired June, 2006), Richard Carbery,
Chief-Custody Division, Onondaga County Justice
Center, Kevin Walsh, Sheriff of Onondaga County,
Warren Darby, Undersheriff of Onondaga County,

                  Defendants.
_____________________________________

FOR PLAINTIFF-APPELLANT:                       Vladimir Zuk, pro se, Camillus, N.Y.

FOR DEFENDANTS-APPELLEES:                      Gordon J. Cuffy, County Attorney (Karen A.
                                               Bleskoski, of counsel), Syracuse, N.Y.

     Appeal from the judgment of the United States District Court for the Northern District of
New York (Glenn T. Suddaby, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff-Appellant Vladimir Zuk, pro se, appeals from an award of summary judgment in
favor of his former employer in his employment discrimination action brought pursuant to Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

         We review orders granting summary judgment de novo and focus on whether the district court
properly concluded that there was no genuine issue as to any material fact and the moving party was
entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
(2d Cir. 2003). “In determining whether there are genuine issues of material fact, we are required to
resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom
summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation
marks omitted). 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).

         On appeal, Zuk argues that the District Court erred when it granted summary judgment on
his Title VII national-origin discrimination claim, which was premised on his allegations that, due to
his Brazilian national origin, he was disciplined more severely than other similarly situated
employees. We have conducted a de novo review of the record in light of the above standards and

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now affirm for substantially the same reasons set forth by the District Court in its September 30,
2010, decision and order.

         Zuk’s national-origin discrimination claim is governed by the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under this
scheme, a plaintiff must first satisfy the minimal burden of making out a prima facie case of
discrimination by showing that “(1) he is a member of a protected class; (2) he was qualified for the
position he held; (3) he suffered an adverse employment action; and (4) the adverse action took
place under circumstances giving rise to the inference of discrimination.” Ruiz v. Cnty. of Rockland,
609 F.3d 486, 492 (2d Cir. 2010). “A showing of disparate treatment—that is, a showing that the
employer treated plaintiff ‘less favorably than a similarly situated employee outside his protected
group’—is a recognized method of raising an inference of discrimination for purposes of making
out a prima facie case.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (quoting Graham v.
Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). In order to raise an inference of discrimination by
showing that he was subjected to disparate treatment, however, “the plaintiff must show []he was
‘similarly situated in all material respects’ to the individuals with whom []he seeks to compare
h[im]self.” Graham, 230 F.3d at 39 (quoting Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d
Cir. 1997)). In this analysis, there must be an “objectively identifiable basis for comparability”
between the plaintiff and the comparator employee, id. at 40 (internal quotation marks omitted),
which includes an assessment of “whether the conduct for which the employer imposed discipline
was of comparable seriousness,” id. (internal citation omitted).

        In his brief, Zuk argues that he was the only Onondaga County Sheriff’s Office (“OSCO”)
employee “singled out and disciplined for allegedly turning in two time sheets late,” and asserts that
another employee, Lieutenant Walter Rys, “never received formal discipline for late or missing time
sheets.” This argument both understates the reason for Zuk’s reprimand and overstates the
usefulness of Rys as a comparator. First, Zuk was not issued a written reprimand simply for turning
in two time sheets late, but also, and more significantly, for disregarding a direct order from his
superior to submit his time sheets in a timely fashion. Indeed, Onondaga County Sheriff Kevin
Walsh affirmed that it was Zuk’s failure “to abide by an order to turn in his time sheets in a timely
fashion” that led him to approve the written reprimand.

        Second, Zuk has not shown that he was “similarly situated in all material respects” to Rys.
Graham, 230 F.3d at 39 (quotation marks omitted). In his affidavit, Rys affirmed that he had
received “2 counseling memo[s] for late time sheets.” Even assuming that a “counseling memo” is
the same as the Supervisor’s Memorandum Zuk received, there is no indication in the record that
Rys, in those counseling memos, was ever specifically ordered, as Zuk was in his November 2003
Supervisor’s Memorandum, to submit his time sheets in a timely fashion. Thus, without evidence


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that Rys failed to comply with the order of his superior, there is no “objectively identifiable basis for
comparability” between Rys and Zuk because it cannot be assessed whether the conduct for which
OCSO imposed discipline on Zuk, and not Rys, “was of comparable seriousness.” Id. at 40 (internal
citations and quotation marks omitted).

       We have considered all of Zuk’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the District Court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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