16-825
Howell v. Montefiore Medical Center

                              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, at 40 Foley Square, in the City of New York, on
the 30th day of January, two thousand seventeen.

Present:       ROBERT A. KATZMANN,
                    Chief Judge,
               AMALYA L. KEARSE,
               DEBRA ANN LIVINGSTON,
                    Circuit Judges.


KENNETH HOWELL,

       Plaintiff-Appellant,

               -v-                                   No. 16-825

MONTEFIORE MEDICAL CENTER,

       Defendant-Appellee,


For Plaintiff-Appellant:                             Thomas Ricotta, Ricotta & Marks, P.C.,
                                                     Long Island City, NY.

For Defendant-Appellee:                              Joseph E. Field, Littler Mendelson P.C.,
                                                     New York, NY.




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

(Torres, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

        Following his termination, plaintiff-appellant Kenneth Howell brought claims against his

employer, defendant-appellee Montefiore Medical Center (“Montefiore”), under Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.. The district court granted

summary judgment to Montefiore on all of Howell’s claims. Howell appeals from the grant of

summary judgment on his claim that he suffered retaliation for his complaints of discrimination.

Specifically, Howell challenges the district court’s conclusion that he did not provide any

evidence that Montefiore’s proffered legitimate, non-discriminatory reasons for its actions

against him were pretextual. We affirm the district court. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

        We review a grant of summary judgment de novo, construing evidence in the light most

favorable to appellant, to determine whether there is a genuine dispute as to any material fact.

Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 842–43 (2d Cir. 2013).

        Howell argues that Montefiore’s proffered reasons for his termination were pretextual,

contending that Montefiore’s investigation into a November 30, 2012 altercation between

Howell and a coworker was conducted in bad faith. Specifically, Howell points to evidence,

considered by Montefiore’s investigator, that weighed against the investigator’s ultimate

conclusion that Howell was at fault during the November 30, 2012 altercation. Even if we

assume that this evidence raises a triable issue of fact as to what happened on November 30,

2012, we have explained that “[i]n a discrimination case, . . . we are decidedly not interested in




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the truth of the allegations against plaintiff. We are interested in what ‘motivated the employer’ .

. . .” McPherson v. NYC Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (emphasis omitted)

(quoting United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)).

The evidence on which Howell relies does not bear on Montefiore’s motivation and does not

suggest that Montefiore’s investigation was conducted in bad faith. Accordingly, it is not

material to the disposition of Howell’s retaliation claim.

       Howell also argues that Montefiore’s proffered reasons for its actions against him were

pretextual because the other employee involved in the November 30, 2012 altercation was

similarly situated to him but was not disciplined or terminated following the incident. However,

there is no dispute that Howell had an extensive disciplinary history, including a prior

termination later converted to a suspension, while the other employee had no disciplinary

history. Accordingly, Howell and the other employee were not similarly situated for Title VII

purposes. See Graham v. Long Island R.R., 230 F.3d 34, 39–40 (2d Cir. 2000).

       Finally, Howell argues that he did not have notice that aggressive and belligerent

behavior could result in his termination. This is neither relevant nor accurate. Howell’s notice, or

lack thereof, does not bear on Montefiore’s motivations for its actions against him. See

McPherson, 457 F.3d at 216. In addition, Howell entered into a settlement agreement with

Montefiore to resolve an earlier incident involving belligerent and aggressive behavior on

Howell’s part. This agreement stated that Howell would be subject to termination if he repeated

such behavior.




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       We have considered all of plaintiff-appellant’s contentions on appeal and have found in

them no basis for reversal. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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