     10-4603
     Skalafuris v. City of N.Y., Dep’t of Corr.

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 4th day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                RICHARD C. WESLEY,
 9                         Circuit Judge,
10                RICHARD J. SULLIVAN,*
11                         District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       DR. ANGELO J. SKALAFURIS, P.E.,
15
16                    Plaintiff-Appellant,
17
18                    -v.-                                        10-4603
19
20       CITY OF NEW YORK, DEPARTMENT OF
21       CORRECTION,
22
23                Defendant-Appellee.
24       - - - - - - - - - - - - - - - - - - - -X


                *
                The Honorable Richard J. Sullivan, of the United
         States District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:    Dr. Angelo J. Skalafuris, pro se, Mount
 2                     Vernon, NY.
 3
 4   FOR APPELLEE:     Larry Sonnenshein and Andrew S. Wellin,
 5                     for Michael A. Cardozo, Corporation
 6                     Counsel of the City of New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Scheindlin,
10   J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16
17        Appellant Dr. Angelo J. Skalafuris, pro se, appeals
18   from the district court’s grant of summary judgment in favor
19   of Appellee City of New York, Department of Corrections
20   (“DOC”). We assume the parties’ familiarity with the
21   underlying facts, procedural history of the case, and issues
22   on appeal.
23
24        We review the district court’s grant of summary
25   judgment de novo and conclude that Skalafuris’s arguments on
26   appeal are without merit substantially for the reasons
27   articulated by the district court. See Skalafuris v. City
28   of New York, Dep’t of Corr., 09-cv-5165, 2010 WL 4273286
29   (S.D.N.Y. Oct. 28, 2010).
30
31        Pursuant to New York State Human Rights Law (“NYHRL”),
32   N.Y. EXEC. LAW § 297(9) (McKinney 2010), and New York City
33   Human Rights Law (“CHRL”), N.Y.C. ADMIN. CODE § 8-502(a),
34   Skalafuris’s state and city claims were barred. See York v.
35   Ass’n of Bar of City of New York, 286 F.3d 122, 127 (2d Cir.
36   2002) (“[B]y the terms of the statute and code,
37   respectively, the NYHRL and CHRL claims, once brought before
38   the [New York State Department of Human Rights], may not be
39   brought again as a plenary action in another court.”).
40   Contrary to Skalafuris’s arguments concerning these
41   election-of-remedies limitations, a federal district court
42   must apply a state’s substantive law in adjudicating a state
43   law claim. See McGullam v. Cedar Graphics, Inc., 609 F.3d
44   70, 74 n.3 (2d Cir. 2010) (“[A] state law depriving its
45   courts of jurisdiction over a state law claim also operates
46   to divest a federal court of jurisdiction to decide the


                                  2
 1   claim.” (quoting Moodie v. Fed. Reserve Bank of N.Y., 58
 2   F.3d 879, 884 (2d Cir. 1995))).
 3
 4        Skalafuris contends that the district court usurped the
 5   jury’s role as trier of fact. However, there were no
 6   genuine issues of material fact to be tried. See Abdu-
 7   Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.
 8   2001) (“It is now beyond cavil that summary judgment may be
 9   appropriate even in the fact-intensive context of
10   discrimination cases.”). The DOC concedes that Skalafuris
11   is a member of a protected class, was qualified for the
12   position to which he applied, and suffered an adverse
13   employment action; the only dispute is whether the
14   circumstances surrounding that action give rise to an
15   inference of age discrimination.2 They do not.
16
17        Skalafuris contends that the DOC violated various civil
18   service rules, but fails to demonstrate any connection
19   between these alleged violations and his allegations of age
20   discrimination.
21
22        Skalafuris did not raise the issue of the hired
23   candidate’s age to the district court. See Brennan v.
24   Metro. Opera Ass’n, Inc., 192 F.3d 310, 317 (2d Cir. 1999)
25   (leaving open the question of whether an age differential is
26   sufficient to establish a prima facie case of age
27   discrimination). His contention, raised for the first time
28   on appeal, that the chosen candidate was forty-four--
29   Skalafuris was seventy-six--is unsupported by any reference
30   to the record.
31
32        Skalafuris argues that his credentials are far superior
33   to those of the candidate hired. See Byrnie v. Town of
34   Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)
35   (“When a plaintiff seeks to prevent summary judgment on the
36   strength of a discrepancy in qualifications ignored by an
37   employer . . . the plaintiff's credentials would have to be
38   so superior . . . that ‘no reasonable person, in the
39   exercise of impartial judgment, could have chosen the
40   candidate selected over the plaintiff for the job in
41   question.’”) (citations omitted). Notwithstanding the
42   impressive features of Skalafuris’s resume, it is not at all


         2
            See Abdu-Brisson, 239 F.3d at 466 (enumerating the
     elements of a prima facie case under the Age Discrimination
     in Employment Act of 1967, 29 U.S.C. § 621 et seq.).
                                  3
 1   clear that he was more qualified for the position to which
 2   he applied--which required supervisory experience in
 3   construction--than the candidate hired, a former
 4   construction supervisor.
 5
 6        The district court’s decision not to permit oral
 7   argument was well within its discretion. See AD/SAT, Div.
 8   of Skylight, Inc. v. Associated Press, 181 F.3d 216, 226 (2d
 9   Cir. 1999). There is no constitutional right to oral
10   argument at summary judgment. See Green v. WCI Holdings
11   Corp., 136 F.3d 313, 316 (2d Cir. 1998) (per curiam) (“Every
12   circuit to consider the issue has determined that the
13   ‘hearing’ requirements of Rule 12 and Rule 56 do not mean
14   that an oral hearing is necessary, but only require that a
15   party be given the opportunity to present its views to the
16   court.”).
17
18        Finding no merit in Skalafuris’s remaining arguments,
19   we hereby AFFIRM the judgment of the district court.
20
21
22                              FOR THE COURT:
23                              CATHERINE O’HAGAN WOLFE, CLERK
24




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