     12-4431-cv
     Humphreys v. Cablevision Sys. Corp.

                          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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of January, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JAMES HUMPHREYS,
13
14                    Plaintiff-Appellant,
15
16                    -v.-                                              No. 12-4431-cv
17
18       CABLEVISION SYSTEMS CORPORATION,
19
20                Defendant-Appellee.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR PLAINTIFF-APPELLANT:              MICHAEL B. SCHULMAN, Michael B.
24                                             Schulman & Associates, P.C.,
25                                             Melville, NY.
26
27       FOR DEFENDANT-APPELLEE:               RENE M. JOHNSON (Michelle Seldin
28                                             Silverman, on the brief),

                                                  1
 1                                Morgan, Lewis & Bockius LLP,
 2                                Princeton, NJ.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Feuerstein, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11       James Humphreys appeals a judgment dismissing his claim

12   against CSC Holdings LLC (“Cablevision”) for sex

13   discrimination in violation of New York State Human Rights

14   Law (“NYHRL”).    We assume the parties’ familiarity with the

15   underlying facts, the procedural history, and the issues on

16   appeal.

17       We review de novo a grant of summary judgment, drawing

18   all reasonable inferences in the non-moving party’s favor.

19   See Wrobel v. County of Erie, 692 F.3d 22, 27 (2d Cir.

20   2012).    Summary judgment is appropriate if the record shows

21   that “there is no genuine dispute as to any material fact

22   and the movant is entitled to judgment as a matter of law.”

23   Fed. R. Civ. P. 56(a).    A genuine dispute of material fact

24   exists only “where the evidence is such that a reasonable

25   jury could decide in the non-movant’s favor.”    Beyer v.

26   County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008).

27       “We typically treat Title VII and NYHRL discrimination

28   claims as analytically identical, applying the same standard

29   of proof to both claims.”    Salamon v. Our Lady of Victory

                                    2
1    Hosp., 514 F.3d 217, 226 n.9 (2d Cir. 2008).     “In a Title

2    VII sex discrimination case . . ., where there is no direct

3    or overt evidence of discriminatory conduct, we apply the

4    three-part burden shifting framework of McDonnell Douglas

5    Corp. v. Green, 411 U.S. 792 (1973), to determine whether

6    summary judgment is appropriate.”   Weinstock v. Columbia

7    Univ., 224 F.3d 33, 42 (2d Cir. 2000).   “First, the

8    plaintiff must establish a prima facie case of

9    discrimination by showing that: (1) []he is a member of a

10   protected class; (2) []he is qualified for [his] position;

11   (3) []he suffered an adverse employment action; and (4) the

12   circumstances give rise to an inference of discrimination.”

13   Id.   “[A] showing that the employer treated plaintiff less

14   favorably than a similarly situated employee outside his

15   protected group . . . is a recognized method of raising an

16   inference of discrimination for purposes of making out a

17   prima facie case.”    Mandell v. County of Suffolk, 316 F.3d

18   368, 379 (2d Cir. 2003) (internal quotation marks omitted).

19   However, a plaintiff relying on such “disparate treatment

20   evidence must show []he was similarly situated in all

21   material respects to the individuals with whom []he seeks to

22   compare [him]self.”   Id. (internal quotation marks omitted).

23         “Generally speaking, a plaintiff’s burden of

24   establishing a prima facie case in the context of employment

                                    3
1    discrimination law is ‘minimal.’”   Collins v. N.Y. City

2    Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002) (quoting

3    McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001)).

4    However, as in Collins, Humphreys “has not met even this low

5    threshold, because the circumstances of his termination do

6    not give rise to or support an inference of discrimination.”

7    Id.

8          Humphreys, a senior manager at a Cablevision facility,

9    does not deny that he flagrantly violated Cablevision’s

10   Harassment Prevention Policy (“Policy”) by showing two of

11   his colleagues a vulgar and offensive internet video.

12   Humphreys’ only response is that one of the two viewers,

13   Dianne Yepes, a human resources employee who later reported

14   his conduct, was equally or more culpable because she did

15   not immediately prevent Humphreys from showing the video,

16   yet was spared termination.

17         On this record, this argument borders on the absurd.

18   To use Yepes as a comparator for a showing of disparate

19   treatment, Humphreys must show that Yepes was “similarly

20   situated,” i.e., “engaged in comparable conduct.”   Ruiz v.

21   County of Rockland, 609 F.3d 486, 493-94 (2d Cir. 2010)

22   (internal quotation marks omitted); see also Graham v. Long

23   Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (“[T]he standard

24   for comparing conduct requires a reasonably close

                                   4
1    resemblance of the facts and circumstances of plaintiff’s

2    and comparator’s cases . . . .”).       Humphreys introduced the

3    video into the workplace and exhibited it to his co-workers.

4    The Policy specifically prohibits “the distribution of

5    sexually explicit or otherwise abusive or offensive . . .

6    communications.”     J.A. 77 (emphasis added).    It was

7    Humphreys who distributed the video; at most, Yepes failed

8    to interrupt the video and protect Humphreys from his own

9    poor judgment.     The audience members are not similarly

10   situated comparators.     Cf. Ruiz, 609 F.3d at 494 (employee

11   who observed and participated in inappropriate behavior

12   could not use as comparator an employee who only observed

13   behavior).

14       Moreover, Humphreys’ two prior incidents involving

15   alleged or proven violations of the Policy distinguish him

16   from persons in the audience.       Humphreys was specifically

17   counseled on the Policy after both incidents and was

18   therefore on clear notice that his conduct was

19   inappropriate.     His rebuttal--that Yepes breached a separate

20   employee confidentiality provision after the relevant

21   incident--is a non sequitur.

22       Humphreys also relies on the mixed-motive theory of

23   discrimination.     Regardless of whether Humphreys presented

24   the theory in district court, he has failed to proffer the

                                     5
1    required evidence of discrimination and this additional

2    theory therefore fails for substantially the same reasons.

3    See de la Cruz v. N.Y. City Human Res. Admin. Dep’t of Soc.

4    Servs., 82 F.3d 16, 23 (2d Cir. 1996) (“In a ‘mixed motives’

5    case, a plaintiff must initially proffer evidence that an

6    impermissible criterion was in fact a ‘motivating’ or

7    ‘substantial’ factor in the employment decision.     This

8    burden is greater than the level of proof necessary to make

9    out a McDonnell Douglas prima facie case.”   (second emphasis

10   added) (citations omitted)).

11       Humphreys has not raised a genuine dispute of material

12   fact on his sex discrimination claim.   The district court

13   properly granted summary judgment to Cablevision.1

14       We have considered all of Humphreys’ remaining

15   arguments and conclude that they are without merit.     The

16   judgment of the district court is hereby affirmed.

17
18                              FOR THE COURT:
19                              CATHERINE O’HAGAN WOLFE, CLERK
20




         1
           Because we review the record and district court’s
     judgment de novo and find no genuine dispute of material
     fact, we need not consider whether the district court
     ignored new fact statements Humphreys submitted in his
     objections to Magistrate Judge Brown’s Report and
     Recommendation.
                                    6
