     14-2590
     Quarless v. Brooklyn Botanic Garden 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 8th day of May, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       ANTHONY C. QUARLESS,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-2590
16
17       BROOKLYN BOTANIC GARDEN CORPORATION,
18       SCOT D. MEDBURY, as President and
19       Chief Executive Officer, ROCHELLE
20       CABINESS, as Director of Human
21       Resources, each being sued
22       individually and in their official
23       capacities as employees of defendant
24       BROOKLYN BOTANIC GARDEN CORP.,
25                Defendants-Appellees.
26       - - - - - - - - - - - - - - - - - - - -X
27
28       FOR APPELLANT:                        MICHAEL H. ZHU, New York, New
29                                             York.
30
 1   FOR APPELLEES:             GEORGE F. BRENLLA, Clifton Budd
 2                              & DeMaria, LLP, New York, New
 3                              York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Eastern District of New York (Amon, Chief
 7   Judge).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Anthony C. Quarless appeals from the judgment of the
14   United States District Court for the Eastern District of New
15   York, granting summary judgment dismissing his complaint
16   alleging retaliation. We assume the parties’ familiarity
17   with the underlying facts, the procedural history, and the
18   issues presented for review.
19
20        Upon de novo review, we conclude (for substantially the
21   same reasons stated by the district court) that the grant of
22   summary judgment in favor of Brooklyn Botanic Garden
23   Corporation, Scot Medbury, and Rochelle Cabiness
24   (hereinafter, collectively “BBG”) was proper.
25
26        Quarless pursues claims for wrongful termination
27   pursuant to Title VII of the Civil Rights Act of 1964, 42
28   U.S.C. § 2000-e et seq.; 42 U.S.C. § 1981; the New York
29   State Human Rights Law (“NYSHRL”); N.Y. Exec. Law § 296; and
30   the New York City Human Rights Law (“NYCHRL”), N.Y. City
31   Admin. Code § 8-107. The federal claims and the NYSHRL
32   claim are analyzed jointly, Hicks v. Baines, 593 F.3d 159,
33   164 (2d Cir. 2010), under the three-step McDonnell Douglas
34   burden-shifting framework, see McDonnell Douglas Corp. v.
35   Green, 411 U.S. 792, 802-05 (1973); Zann Kwan v. Andalex
36   Grp., LLC, 737 F.3d 834, 843 (2d Cir. 2013).
37
38        Quarless cannot establish a prima facie case of
39   retaliation because he fails to demonstrate a causal
40   connection between his protected activity and his
41   termination. See Hicks, 593 F.3d at 164. Quarless relies
42   on temporal proximity between his complaints to the Equal
43   Employment Opportunity Commission (“EEOC”) and his
44   termination. See Zann Kwan, 737 F.3d at 845. However, as
45   the district court concluded, the intervening time is too
46   long to support an inference of causation. See Clark Cnty.
47   Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).

                                  2
 1   Quarless argues that the district court should have measured
 2   the interval based on Quarless’ more recent letters to the
 3   EEOC; but, as the district court found, there was no
 4   evidence that BBG was aware of those supplemental letters.
 5
 6        Even if Quarless had established a prima facie case,
 7   BBG proffered a legitimate, nonretaliatory reason for his
 8   termination: BBG was in financial distress and adopted cost-
 9   saving measures including an organization-wide reduction-in-
10   force. See Gallo v. Prudential Residential Servs., L.P., 22
11   F.3d 1219, 1226 (2d Cir. 1994) (holding that a firm’s
12   decision to implement a reduction-in-force “to meet its
13   budgetary goals” during “a business downturn” was a
14   legitimate reason for terminating an employee). Quarless
15   argues that several statements by BBG regarding the
16   reduction-in-force were inconsistent, and thus indicative of
17   pretext; but any inconsistencies and implausibilities were
18   minor and insufficient to permit a reasonable to jury to
19   find that the proffered justification was a pretext for
20   unlawful retaliation.
21
22        Quarless contends that the district court should have
23   considered other protected activities, as well as adverse
24   employment actions, that pre-dated his termination.
25   However, all these contentions are raised for the first time
26   on appeal and are therefore forfeited. See Krumme v.
27   WestPoint Stevens, Inc., 238 F.3d 133, 142 (2d Cir. 2000)
28   (“It is the general rule, of course, that a federal
29   appellate court does not consider an issue not passed upon
30   below.” (quoting Singleton v. Wulff, 428 U.S. 106, 120
31   (1976)). Accordingly, Quarless cannot prevail on his Title
32   VII, § 1981, or NYSHRL claims.
33
34        As to Quarless’ NYCHRL claims, those claims “must be
35   analyzed separately and independently from federal and state
36   discrimination claims.” Mihalik v. Credit Agricole
37   Cheuvreux N. Am., Inc., 715 F.3d 102, 113 (2d Cir. 2013).
38   “[S]ummary judgment is appropriate only if the plaintiff
39   cannot show that retaliation played any part in the
40   employer’s decision.” Id. at 116. On summary judgment, a
41   plaintiff must “demonstrate some evidence that links her
42   complained-of treatment to a retaliatory motivation.”
43   Wilcox v. Cornell Univ., 986 F. Supp. 2d 281, 287 (S.D.N.Y.
44   2013) (internal quotation marks and alterations omitted)
45   (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 35
46   (N.Y. App. Div. 2009)). Because Quarless failed to come
47   forward with any evidence that retaliation played a role in

                                  3
 1   BBG’s decision to terminate his employment, dismissal of his
 2   NYCHRL claims on summary judgment was appropriate.
 3
 4        For the foregoing reasons, and finding no merit in
 5   Quarless’ other arguments, we hereby AFFIRM the judgment of
 6   the district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10




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