19‐330‐cv
Louis Gachette v. Metro‐North Commuter Railroad Company

                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 18th day of March, two thousand twenty.

PRESENT:            GERARD E. LYNCH,
                    DENNY CHIN,
                                         Circuit Judges,
                    PAUL A. ENGELMAYER,
                                         District Judge.*
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LOUIS GACHETTE,
                                        Plaintiff‐Appellant,

                              ‐v‐                                                  19‐330‐cv

METRO‐NORTH COMMUTER RAILROAD
COMPANY,
                                         Defendant‐Appellee.
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          *    Judge Paul A. Engelmayer, of the United States District Court for the Southern
District of New York, sitting by designation.
          
              The Clerk of the Court is respectfully directed to amend the official caption to
conform to the above.
FOR PLAINTIFF‐APPELLANT:                   Louis Gachette, pro se, Brooklyn, New York.

FOR DEFENDANT‐APPELLEE:                    Beck S. Fineman, Ryan Ryan Deluca, LLP,
                                           Bridgeport, Connecticut.

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

New York (Torres, J.).

              ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

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

              Plaintiff‐appellant Louis Gachette, proceeding pro se, appeals the district

courtʹs judgment entered January 9, 2019, granting summary judgment to defendant‐

appellee Metro‐North Commuter Railroad Company (ʺMetro‐Northʺ), sued herein as

Metro North‐High Bridge, with respect to his discrimination claims under

42 U.S.C. § 1981, the New York State Human Rights Law (the ʺNYSHRLʺ), and the New

York City Human Rights Law (the ʺNYCHRLʺ).1 Gachette, who is African American

and worked as an electrician at Metro‐North, alleged, inter alia, disparate treatment and

retaliation based on his race and national origin. A panel of this Court previously

vacated and remanded the disparate treatment claims so that the district court could

address a discovery dispute concerning overtime records. See Gachette v. Metro North‐

High Bridge, 722 F. Appʹx 17, 20 (2d Cir. 2018) (summary order). On remand, Metro‐




1       Dave Plumb and Preston Kirk were dismissed from the action in 2013 and 2014,
respectively. The district courtʹs judgment entered against Metro‐North, and Gachette appeals
only from that judgment.
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North produced overtime records, and, after motion practice, the district court again

granted summary judgment to Metro‐North. We assume the partiesʹ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

Gachette challenges the district courtʹs summary judgment decision and certain

discovery rulings.

I.     Summary Judgment

              We review a grant of summary judgment de novo, ʺresolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.ʺ Garcia v. Hartford

Police Depʹt, 706 F.3d 120, 126‐27 (2d Cir. 2013). ʺSummary judgment is proper only

when, construing the evidence in the light most favorable to the non‐movant, ʹthere is

no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.ʹʺ Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ.

P. 56(a)).

              Gachetteʹs federal discrimination claim under § 1981 fails, because that

statute ʺdoes not provide a separate right of action against state actors.ʺ Duplan v. City

of New York, 888 F.3d 612, 621 (2d Cir. 2018) (dismissing discrimination claims against

city employer brought under § 1981). Metro‐North is a New York state actor. See N.Y.

Pub. Auth. Law § 1261(16) (ʺʹState agencyʹ shall mean any . . . public benefit

corporation.ʺ); N.Y. Comp. Codes R. & Regs. tit. 21, § 1085.1(a) (ʺMetro‐North . . . is a

public benefit corporation and an independent subsidiary of the Metropolitan


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Transportation Authority.ʺ). Section 1983, however, does provide such a right of action.

42 U.S.C. § 1983. Because we read a pro se litigantʹs complaint to make the strongest

legal claims suggested by the facts alleged, McLeod v. Jewish Guild for the Blind, 864 F.3d

154, 156‐57 (2d Cir. 2017), we thus analyze his federal claim below according to the

standards applied under Title VII employment discrimination claims. See United States

v. City of New York, 717 F.3d 72, 93 n.21 (2d Cir. 2013) (explaining that the Title VII

framework applies to § 1983 claims).

              Discrimination claims under the NYSHRL are also analyzed under the

same standards as Title VII claims, i.e., the McDonnell Douglas burden‐shifting

framework. See Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010). To state a prima facie

case of discrimination, Gachette has the burden of establishing, inter alia, that the

adverse employment action occurred under circumstances giving rise to an inference of

discrimination. Id. Under the NYCHRL ‐‐ which must be analyzed separately from

state and federal law claims ‐‐ Gachette must demonstrate, by a preponderance of

evidence, that he ʺhas been treated less well than other employeesʺ because of his race

or national origin. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d

Cir. 2013).

              On appeal, Gachette does not argue that the overtime records produced

by Metro‐North created an issue of material fact precluding summary judgment.

Although we ʺliberally construe pleadings and briefs submitted by pro se litigants,


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reading such submissions to raise the strongest arguments they suggest,ʺ McLeod, 864

F.3d at 156, pro se appellants must still comply with Federal Rule of Appellate

Procedure 28(a), which ʺrequires appellants in their briefs to provide the court with a

clear statement of the issues on appeal,ʺ Moates v. Barkley, 147 F.3d 207, 209 (2d Cir.

1998) (citing Fed. R. App. P. 28(a)). Thus, despite affording pro se litigants ʺsome

latitude in meeting the rules governing litigation pursuant to Rule 28(a) . . . we normally

will not[] decide issues that a party fails to raise in his or her appellate brief.ʺ Id.

(internal citations omitted); see also Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632‐33 (2d

Cir. 2016) (ʺAlthough we accord filings from pro se litigants a high degree of solicitude,

even a litigant representing himself is obliged to set out ʹidentifiable argumentsʹ in his

principal brief.ʺ). Here, Gachette failed to challenge the district courtʹs holding that the

overtime records failed to create a disputed issue of material fact; thus, Gachette waived

any argument relating to the overtime records.

              Gachetteʹs remaining arguments on appeal fail for the following reasons.

First, although Gachette briefly asserts that issues of material fact remain concerning

whether white electricians received more overtime than he did, he cites only his June

2010 letter in support of that assertion. As the district court held, however, the records

submitted by Metro‐North confirm that on the date complained of in Gachetteʹs June

2010 letter (May 31, 2010), the only overtime shift available was given to another

African American electrician.


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              Second, to the extent Gachette argues that Metro‐North discriminated

against him by failing to promote him, that claim was properly dismissed at the motion

to dismiss stage, and Gachette fails to raise any challenge to the district courtʹs dismissal

order.

              Third, Gachetteʹs assertions that Metro‐Northʹs overtime records were

ʺcosmeticʺ and that the district court deprived him of due process and equal protection

are conclusory and thus unavailing. See Gerstenbluth v. Credit Suisse Secs. (USA) LLC,

728 F.3d 139, 142 n.4 (2d Cir. 2013) (pro se litigant ʺwaived any challengeʺ to the district

courtʹs adverse ruling because he mentioned the ruling only ʺobliquely and in passingʺ);

Norton v. Samʹs Club, 145 F.3d 114, 117 (2d Cir. 1998) (ʺIssues not sufficiently argued in

the briefs are considered waived and normally will not be addressed on appeal.ʺ).

              Fourth, Gachetteʹs argument that the district courtʹs summary judgment

decision contradicts its earlier motion to dismiss decision appears to be based on a

misunderstanding. The district courtʹs dismissal order held only that Gachetteʹs

disparate treatment claims were plausible; at summary judgment, however, Gachette

was required to support his claims with evidence. See Salahuddin v. Goord, 467 F.3d 263,

273 (2d Cir. 2006) (ʺLike the movant, the nonmovant cannot rest on allegations in the

pleadings and must point to specific evidence in the record to carry its burden on

summary judgment.ʺ). He failed to do that.




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II.    Discovery Rulings

              ʺWe review discovery rulings for abuse of discretion.ʺ In re Agent Orange

Prod. Liab. Litig., 517 F.3d 76, 102 (2d Cir. 2008). A district court has abused its

discretion ʺif it based its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.ʺ Residential Funding Corp. v. DeGeorge Fin. Corp.,

306 F.3d 99, 107 (2d Cir. 2002).

              The district court did not abuse its discretion in denying Gachetteʹs

requests, following remand, for further discovery beyond the overtime records that we

ordered be produced. This Courtʹs prior order vacating summary judgment and

remanding for further proceedings reasoned that the overtime records could create a

disputed issue of material fact and Gachette had requested the overtime records. See

Gachette, 722 F. Appʹx at 20. We did not, however, order a general reopening of

discovery, and the district court did not abuse its discretion in determining that,

pursuant to this Courtʹs order, Gachette was not entitled to reopen discovery generally.

                                          *    *   *

              We have considered Gachetteʹs remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the order of the district court.

                                           FOR THE COURT:
                                           Catherine OʹHagan Wolfe, Clerk




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