14-409-cv
Howard v. City of New York
 
                             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, 40 Foley Square, in the City of New
York, on the 4th day of March, two thousand fifteen.

PRESENT: REENA RAGGI,
                 RICHARD C. WESLEY,
                 GERARD E. LYNCH,
                                 Circuit Judges.
----------------------------------------------------------------------
DOUGLAS HOWARD,
                                 Plaintiff-Appellant,

                   v.                                                    No. 14-409-cv

CITY OF NEW YORK, KIEISHSHA Y. GARNES,
SHERRI ROSENBERG,
                                 Defendants-Appellees.*
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          MICHAEL G. O’NEILL, ESQ., New York,
                                                  New York.

APPEARING FOR APPELLEES:                         DIANA LAWLESS (Kristin M. Helmers, on the
                                                 brief), for Zachary W. Carter, Corporation
                                                 Counsel of the City of New York, New York,
                                                 New York.


*
    The Clerk of Court is directed to amend the official caption as shown above.

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       Appeal from a judgment of the United States District Court for the Southern District

of New York (Jesse M. Furman, Judge; James C. Francis IV, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 7, 2014, is AFFIRMED.

       Plaintiff Douglas Howard, a former tennis instructor at Manhattan’s East River

Park, appeals from an award of summary judgment in favor of defendants on his claims of

race discrimination and retaliation under 42 U.S.C. §§ 1981 and 1983. We review an

award of summary judgment de novo, and we will affirm only if the record, viewed in the

light most favorable to the nonmoving party, reveals no genuine issue of material fact.

See Fed. R. Civ. P. 56; Lynch v. City of New York, 737 F.3d 150, 156 (2d Cir. 2013). We

assume the parties’ familiarity with the facts and record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.

       1.     Discrimination Claims

       Howard submits that the district court erred in concluding, as a matter of law, that he

failed to demonstrate prima facie race discrimination in his claims that defendants

impaired and ultimately terminated his permit to teach tennis at East River Park. These

claims are evaluated under the framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir.

2013) (applying McDonnell Douglas’s Title VII framework to § 1981 and § 1983 claims).1


1
  Because § 1981 and § 1983 claims are each analyzed under McDonnell Douglas and we
conclude that Howard’s discrimination claims fail under this framework, we need not here
decide whether independent recovery for race discrimination by state actors is available

                                              2
Under this rubric, “plaintiff bears the initial burden of establishing a prima facie case of

discrimination.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). If he does so,

“the burden shifts to the defendant to articulate ‘some legitimate, non-discriminatory

reason’ for its action,” id. (quoting McDonnell Douglas Corp. v. Green, 411 U.S. at 802),

whereupon “the burden then shifts back to the plaintiff to show that the employer’s

explanation is a pretext” for unlawful discrimination, Kirkland v. Cablevision Sys., 760

F.3d 223, 225 (2d Cir. 2014). Whether analyzed under either § 1981 or § 1983, Howard’s

initial burden is to present facts sufficient to support an inference of intentional race

discrimination.   See Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000)

(“Section 1981, like [§ 1983 claims under] the Equal Protection Clause, only prohibits

intentional racial discrimination.”). The district court ruled that Howard failed to carry

this prima facie burden because his sole evidence of adverse treatment on account of his

race—“(1) a single racially motivated comment uttered by a non-decisionmaker and (2) the

fact that the decisionmaker is black and he is white”—was insufficient to raise a triable

issue of intentional discrimination. Howard v. City of New York, No. 12 Civ. 933 (JMF),

2014 WL 84357, at *2 (S.D.N.Y. Jan. 6, 2014), adopting in part report and

recommendation, 2013 WL 6925088 (S.D.N.Y. July 3, 2013).

under § 1981. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989) (holding that
the “express cause of action for damages created by § 1983 constitutes the exclusive
federal remedy for violation of the rights guaranteed in § 1981 by state governmental
units”); Anderson v. Conboy, 156 F.3d 167, 178 n.19 (2d Cir. 1998) (reserving decision as
to whether § 1981(c), amended by Civil Rights Act of 1991, “creates an implied private
right of action against state actors . . . statutorily overruling Jett”); see also Whaley v. City
Univ. of New York, 555 F. Supp. 2d 381, 401 (S.D.N.Y. 2008) (recognizing that “Second
Circuit has not yet ruled on this issue”).

                                               3
       In urging otherwise, Howard points to an alleged October 2008 statement by a

non-decision-making park attendant, who told Howard “we don’t want your white ass

here” when he was retrieving his ball basket from the park tennis building. He also

alleges that the park attendants treated the previous permit holder—Don Sylva, who

Howard asserts was Hispanic—more favorably than Howard by, inter alia, providing Sylva

with a key to the tennis building to store belongings and guaranteeing him a tennis court for

teaching upon five-minutes’ notice, benefits denied Howard. Howard further asserts

disparate treatment of white and non-white tennis players.

       These allegations fail to create a plausible inference that Howard suffered

intentional race discrimination. First, as the district court correctly concluded, the park

attendant’s alleged racial comment did not raise a triable issue of discrimination because

the attendant had no decision-making authority in terminating Howard’s permit and

Howard proffered no evidence beyond mere speculation tying this statement to any

decision maker. See Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 115 (2d Cir. 2007)

(holding that remarks by someone other than decision maker “may have little tendency to

show that the decision-maker was motived by the discriminatory sentiment expressed in

the remark”), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,

177–78 (2009). Moreover, the park attendant’s comment was made over ten months

before Howard’s permit was terminated, too remotely to support an inference that the

adverse action was motivated by racial bias. See Tomassi v. Insignia Fin. Grp., 478 F.3d




                                             4
at 115 (holding that the more remote and oblique remarks are in relation to adverse action,

the less they prove discriminatory motivation).

       Insofar as Howard faults the district court for focusing on the termination of his

permit as the adverse action rather than considering his claimed impairment of contractual

rights throughout the duration of his permit, that distinction is immaterial because the

incidents to which Howard refers—generally, alleged differential treatment between

Howard and Sylva—do not raise triable issues of intentional race discrimination. Indeed,

the only admissible record evidence suggests that Sylva was a white man of Portuguese

descent and, as such, not a comparator outside of Howard’s protected group. See Ruiz v.

Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010) (holding that disparate treatment

claim requires “showing that an employer treated plaintiff less favorably than a similarly

situated employee outside his protected group” (internal quotation marks omitted)). As to

Howard’s § 1981 claim, in any event, Howard’s tennis permit explicitly both prohibited

him from storing any items at the park and required him to reserve tennis courts a day in

advance, undermining Howard’s claim that the Park’s refusal to deviate from these

provisions impaired his contract rights.

       Finally, the fact that Howard is white and the East River Park employees are black

or Hispanic is insufficient, by itself, to raise an inference of intentional racial

discrimination. See Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir. 1994) (dismissing

case for “lack of any specific factual support for his claim of a racial motivation” where

“[plaintiff] has offered no reason . . . other than his assertion that [defendants] were white


                                              5
and that he is Bengali”); accord Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458,

470 (2d Cir. 2006).

       In sum, Howard has done little more than cite to his alleged mistreatment and ask

the court to conclude that “it must have been related to [his] race. This is not sufficient.”

Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001). We therefore conclude that the

district court correctly granted summary judgment to defendants on Howard’s race

discrimination claims.

       2.     Retaliation Claim

       We similarly uphold the award of summary judgment on Howard’s retaliation claim

under § 1983, which is analyzed under the First Amendment.2 See Williams v. Town of

Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008); Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.

1996) (stating that First Amendment, not Equal Protection Clause, is recognized ground

for § 1983 claim of retaliation following complaints of racial discrimination). We have

“described the elements of a First Amendment retaliation claim in several ways, depending

on the factual context.” Williams v. Town of Greenburgh, 535 F.3d at 76. Private

citizens must show that retaliation was caused by the plaintiff’s exercise of an “interest

protected by the First Amendment.”          Id. (internal quotation marks omitted); see

Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 152 (2d Cir. 2006). Public


2
  Howard also identifies error in the district court’s failure to analyze his § 1981 and First
Amendment retaliation claims independently. Because Howard’s § 1981 claim would fail
for lack of causation even if analyzed independently, we identify no error in the district
court’s analysis. See Lizardo v. Denny’s, Inc., 270 F.3d at 105 (requiring proof of
causation for § 1981 retaliation claim).

                                              6
employees, however, are held to a higher standard, requiring that their asserted

First-Amendment-protected speech be on a “matter of public concern.” Williams v.

Town of Greenburgh, 535 F.3d at 76–77; see Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.

2003) (holding that public employee alleging retaliation for exercise of First Amendment

speech rights must initially demonstrate (1) he engaged in constitutionally protected

speech because he spoke as a citizen on a matter of public concern; (2) he suffered an

adverse employment action; and (3) the speech at issue was a substantial or motivating

factor in the decision). Even if a plaintiff can establish such a prima facie case, “the

government can avoid liability if it can show that it would have taken the same adverse

action in the absence of the protected speech.” Heil v. Santoro, 147 F.3d 103, 110 (2d Cir.

1998); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

       The district court dismissed the retaliation claim for failure to establish a prima facie

case, finding that, as a public permit holder, Howard was subject to, and failed to meet, the

requirement that his speech be on a matter of public concern. See Howard v. City of New

York, 2014 WL 84357, at *3. Howard urges us to analyze his claim as that of a private

citizen, maintaining that his possession of the tennis permit did not make him a public

employee. Defendants defend application of the public-employee standard, likening

Howard to an independent government contractor, a status the Supreme Court has analyzed

as a public employee. See Board of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 673, 676–

79 (1996) (holding that independent contractors’ First Amendment retaliation claims are

analyzed in same manner as claims by public employees). We need not conclusively


                                               7
decide this question because, even if we were to resolve the issue in Howard’s favor, we

nevertheless conclude that Howard failed to raise a triable issue of fact at the third step of

analysis—that is, Howard has failed to establish a causal connection between his protected

speech and the decision to terminate his permit.

       “A plaintiff can establish the causal connection between protected expression and

an adverse employment determination indirectly by showing that the protected activity was

followed by adverse treatment in employment, or directly by evidence of retaliatory

animus.” Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (internal quotation marks

omitted). Howard proffers no direct evidence of retaliatory animus, instead urging that

such animus be inferred from the temporal proximity of his race discrimination complaints

to the termination of his permit. See Gorman-Bakos v. Cornell Coop. Extension of

Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001) (“[A] plaintiff can indirectly establish

a causal connection to support a . . . retaliation claim by showing that the protected activity

was closely followed in time by the adverse . . . action.” (internal quotation marks

omitted)).   Howard began complaining of race discrimination to East River Park

personnel as early as October 2008 and continued to raise it for the ensuing ten months

until his permit was terminated on August 21, 2009. See Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001) (holding that temporal proximity measured from date

of “employer’s knowledge of [the] protected activity”); accord Nagle v. Marron, 663 F.3d

100, 110–11 (2d Cir. 2011). While we have “not drawn a bright line defining, for the

purposes of a prima facie case, the outer limits beyond which a temporal relationship is too


                                              8
attenuated to establish causation,” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110

(2d Cir. 2010), Howard cannot raise a triable of causation given that his protected activity

occurred for so long without any adverse action, cf. Clark County Sch. Dist. v. Breedon,

532 U.S. at 273 (citing with approval cases dismissing retaliation claims where there were

three and four month intervals between protected activity and adverse employment action,

and noting that temporal proximity must be “very close”). Indeed, rather than take

adverse actions against Howard for his race discrimination complaints, the Park initially

took his allegations seriously and conducted an investigation, which found Howard’s

allegations baseless. Accordingly, Howard has failed to establish causation.3

       3.     Monell Claim

       The district court also correctly granted summary judgment on Howard’s municipal

claim under Monell v. Department of Social Services of the City of New York, 436 U.S.

658 (1977), because Howard failed to prove any underlying denial of a constitutional right,

see Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006).

3
  Magistrate Judge Francis found that the short time between Howard’s final complaints in
August 2009 and his permit termination later that month “may suggest a causal
connection.” Howard v. City of New York, 2013 WL 6925088, at *1. Even if we were
to agree, defendants have proffered numerous legitimate, non-retaliatory reasons for
terminating Howard’s permit, including, inter alia, (1) Howard’s repeated violations of the
terms of his permit by failing to provide park personnel with notice of his teaching
schedule, storing equipment at the park without authorization, and posting materials on the
premises without permission; and (2) numerous complaints that Howard was aggressive
and argumentative with park staff and others using the courts, including Howard’s
involvement in a physical altercation with another patron on the tennis court resulting in
Howard’s arrest. Thus, defendants have clearly met their burden of showing that they
would have taken the same adverse action even in the absence of Howard’s protected
speech, see Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999), and Howard has not raised
a triable issue of pretext.

                                             9
      4.     Conclusion

      We have considered Howard’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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