     10-3282-cv
     Cooper v. AlliedBarton Security Services


 1                                        UNITED STATES COURT OF APPEALS
 2                                            FOR THE SECOND CIRCUIT
 3
 4                                                     SUMMARY ORDER
 5
 6   R ULINGS BY SUM M ARY ORD ER DO NO T HAVE PRECEDENTIAL EFFECT . C ITATIO N TO A SU M M ARY O RD ER FILED O N O R AFTER
 7   J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VERN ED BY F ED ERAL R U LE O F A PPELLATE P RO CED U RE 32.1 AND THIS COU RT ’S
 8   L O C A L R U LE 32.1.1. W HEN CITING A SUM M ARY ORD ER IN A D OCU M ENT FILED W ITH THIS COU RT , A PAR TY M U ST C IT E
 9   EITHER TH E F ED ERAL A PPEN D IX O R AN ELECTRO N IC D ATABASE ( W ITH TH E N O TATIO N “ SU M M ARY O RD ER ”). A PARTY
10   CITIN G A SU M M ARY O RD ER M U ST SERVE A CO PY O F IT ON AN Y PARTY N O T REPRESENTED B Y CO U N SEL .

11
12          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
13   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day
14   of May, two thousand eleven.
15
16   PRESENT:
17               RALPH K. WINTER,
18               ROSEMARY S. POOLER,
19               BARRINGTON D. PARKER,
20                           Circuit Judges.
21   _______________________________________________
22
23   Gary Cooper,
24
25                                              Plaintiff-Appellant,
26                        v.                                                               No. 10-3282-cv
27
28   AlliedBarton Security Services, New York City Dept. of
29   Citywide Administrative Services,
30
31                           Defendants-Appellees.
32   ______________________________________________
33
34   For Appellant:                                                               GARY COOPER, pro se,
35                                                                                Brooklyn, NY.
36
37   For Defendant-Appellee AlliedBarton Security Services:                       MATTHEW D. CRAWFORD,
38                                                                                Martenson, Hasbrouck & Simon,
39                                                                                Atlanta, GA.
40
41   For Defendant-Appellee New York City
42   Department of Citywide Administrative Services:                              ANDREW WELLIN and LARRY
43                                                                                SONNENSHEIN, New York City
44                                                                                Law Department, New York, NY.
 1
 2        Appeal from a judgment of the United States District Court for the Southern District of
 3   New York (Gardephe, J.).
 4
 5          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

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

 7          Plaintiff-Appellant Gary Cooper appeals pro se from the district court’s judgment

 8   granting summary judgment to Defendants-Appellees on his employment discrimination claims.

 9   We assume the parties’ familiarity with the facts and procedural history.

10          We review orders granting summary judgment de novo and focus on whether the district

11   court properly concluded that there was no genuine issue as to any material fact and the moving

12   party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P.,

13   321 F.3d 292, 300 (2d Cir. 2003). To bring a claim under Title VII of the Civil Rights Act, a

14   plaintiff must first establish a prima facie case of discrimination. See McDonnell Douglas Corp.

15   v. Green, 411 U.S. 792, 802 (1973). If established, the burden of production then shifts to the

16   employer to demonstrate a legitimate, nondiscriminatory purpose for the employment decision.

17   Id. Once the employer has met this burden, the burden shifts back to the plaintiff to demonstrate,

18   by a preponderance of the evidence, that the nondiscriminatory reason was merely a pretext for

19   discrimination. Id. at 804-05. The ultimate burden of persuasion is always on the plaintiff, who

20   must demonstrate that the employer’s action was prompted by an impermissible motive. See St.

21   Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511-12, 518 (1993) (citing Tex. Dep’t of Comty.

22   Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

23          Here, the district court properly granted summary judgment to Defendants because

24   Cooper can neither establish a prima facie claim of race discrimination, as he failed to


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 1   demonstrate that the circumstances surrounding his termination gave rise to an inference of

 2   discrimination, nor rebut Defendants’ proffered non-discriminatory reason for the adverse

 3   employment action Cooper suffered, namely, that Cooper was terminated from his employment

 4   because he admittedly fell asleep at his post as a security guard on multiple occasions, which was

 5   prohibited by his employer’s rules.

 6          We review Cooper’s challenge to the district court’s decision to decline to consider

 7   declarations Cooper submitted to the court in granting the Defendants’ motions for summary

 8   judgment, for abuse of discretion. See United States v. Munoz-Franco, 487 F.3d 25, 34 (2d Cir.

 9   2007). Contrary to Cooper’s assertion, however, the district court was not required to consider

10   evidence that was not admissible under the Federal Rules of Evidence. See Fed. R. Civ. P.

11   56(c)(4) (providing that “[a]n affidavit or declaration used to support or oppose a motion must be

12   made on personal knowledge [and] set out facts that would be admissible in evidence”); Raskin

13   v. Wyatt Co., 125 F.3d 55, 65-66 (2d Cir. 1997) (noting that “[t]he principles governing

14   admissibility of evidence do not change on a motion for summary judgment”). The declarations

15   Cooper submitted by other AlliedBarton employees were not based on their personal knowledge

16   regarding the adverse employment action Cooper suffered; contained multiple instances of

17   hearsay; and were largely irrelevant to the claims raised in Cooper’s complaint.

18          Insofar as Cooper’s third amended complaint can be construed as seeking to raise a so-

19   called “hybrid” action against both his employer, AlliedBarton, for breaching the collective

20   bargaining agreement in violation of § 301 of the Labor Management Relations Act, and his

21   union, Allied International Union, for breaching its duty of fair representation in redressing

22   Cooper’s grievance against AlliedBarton, the statute of limitations for such a claim is six months,


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 1   and begins to run when the employee knew or should have known of the breach of the duty of

 2   fair representation. See White v. White Rose Food, 128 F.3d 110, 114-15 (2d Cir. 1997)

 3   (discussing hybrid claims); DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169 (1983)

 4   (discussing statute of limitations period). Here, Cooper was terminated in July 2008, and filed

 5   his original complaint over a year later, in July 2009. Accordingly, any hybrid action Cooper

 6   sought to raise is untimely and thus without merit.

 7          We have reviewed Cooper’s remaining arguments and find them to be without merit. For

 8   the reasons stated above, the judgment of the district court is AFFIRMED.

 9                                                         FOR THE COURT:
10                                                         Catherine O’Hagan Wolfe, Clerk




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