11-849-cv
Rosario v. Hilton Hotels 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.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 17th day of April, two thousand twelve.

Present: ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
                     Circuit Judges,
         MARK R. KRAVITZ,
                     Judge.*
____________________________________________________________

CARLOS ROSARIO,

                           Plaintiff-Appellant,

                           -v-                          No. 11-849-cv

HILTON HOTELS CORPORATION, a/k/a MILLENIUM HILTON, CDL (NEW YORK)
L.L.C.,

                           Defendant-Appellees.

____________________________________________________________

For Plaintiff-Appellant:                  DAVID ABRAMS, New York, N.Y.

For Defendant-Appellee:                   DIANE WINDHOLZ (Daniel D. Schudroff, on the brief),
                                          Jackson Lewis LLP, New York, N.Y.


       *
        Judge Mark R. Kravitz, of the United States District Court for the District of
Connecticut, sitting by designation.
      Appeal from the United States District Court for the Eastern District of New York
(Weinstein, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

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

       Plaintiff-Appellant Carlos Rosario (“Rosario”) appeals from a February 4, 2011, final

order and February 8, 2011, judgment entered by the United States District Court for the Eastern

District of New York (Weinstein, J.), granting Defendant-Appellees’ (“Hilton”) motion for

summary judgment and dismissing Rosario’s complaint in its entirety. Rosario is a male over

forty years of age. His complaint alleged that Hilton discriminated against on the basis of his

age and/or gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq. (“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

(“ADEA”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq.

(“NYCHRL”).1 The district court dismissed all of Rosario’s claims, finding, inter alia, that (1)

Rosario failed to make out a prima facie case of age or gender discrimination in his employment

termination because he failed to demonstrate that he was dismissed under circumstances giving

rise to an inference of discrimination;2 and (2) Rosario failed to bring a prima facie case of

gender discrimination based on a disparate compensation claim as he had not established that he

was paid less than similarly situated employees who were not members of his protected class.


       1
        Rosario’s brief in opposition to Hilton’s motion for summary judgment did not mention
his NYCHRL claims and, on appeal, Rosario does not explicitly raise these claims on appeal and
we decline to decide this issue.
       2
        As an alternative grounds for its holding, the district court found that Rosario failed to
demonstrate that the reasons defendants gave for terminating his employment were pretextual.
On appeal, Rosario challenges this conclusion. It is unnecessary, however, for us to address this
argument because we conclude that Rosario has failed to make out a prima facie case of
discrimination.

                                                 2
On appeal, Rosario challenges both of these holdings. We assume the parties’ familiarity with

the remaining facts and procedural history of the case.

       “We review a grant of summary judgment de novo to determine ‘whether genuine

disputes over material fact exist . . . which should properly be submitted to a jury or whether,

where no issues of material fact are found, the moving party is entitled to judgment as a matter of

law.’” Nagle v. Marron, 663 F.3d 100, 104-05 (2d Cir. 2011) (quoting Byrnie v. Town of

Cromwell Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001)). “We resolve all ambiguities and draw

all inferences in favor of the non-moving party.” Id. at 105 (internal quotation marks omitted).

       We first consider Rosario’s claim that he made out a prima facie case of age or gender

discrimination for employment discrimination by demonstrating that the defendants treated him

less favorably than a similarly situated employee outside of his protected group who committed

comparable offenses. This argument lacks merit. While a plaintiff may raise “an inference of

discrimination by showing that she was subjected to disparate treatment,” Graham v. Long

Island R.R., 230 F.3d 34, 39 (2d Cir. 2000), Rosario has failed to make such a showing.

Specifically, Rosario did not offer adequate evidence to support his contention that there were

“numerous employees who were female, substantially younger, or both, whose performance was

no better than [Rosario’s], but who were not discharged,” Pl.’s Br. 8. Rosario’s reliance on Luis

Jordan’s affidavit is unavailing given that “Jordan was not present for the February 2008 or July

2008 infractions precipitating Rosario’s termination and ha[d] no direct knowledge of Rosario’s

performance in 2008.” App. 185-86. In contrast, Hilton submitted record evidence

demonstrating that male and female housekeeping managers received equal treatment during the

period in question.



                                                 3
       Next, we consider and reject Rosario’s argument that he established a prima facie case

for gender discrimination based on disparate compensation. A comparison of Rosario’s wages

with those of female housekeeping managers reveals that Rosario was one of the highest paid

employees, and out of a total of eleven managers, only two female housekeeping managers

earned more than him. And while some Hilton employees received a greater wage increase than

Rosario in October 2007, he failed to establish that he was “similarly situated” to those

employees, given his disciplinary history at that time.

       We have considered Rosario’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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