12-2319-cv
Sotomayor v. City of N.Y.


                          U NITED S TATES C OURT OF A PPEALS
                               FOR THE S ECOND C IRCUIT


                                August Term 2012

(Submitted:           February 20, 2013           Decided:         April 11, 2013)

                              Docket No. 12-2319-cv
                               ____________________

                                 G LADYS S OTOMAYOR ,

                                                     Plaintiff-Appellant,

   C ITY   OF   N EW Y ORK , N EW Y ORK C ITY D EPARTMENT    OF   E DUCATION , F RED
                               W ALSH , J EANETTE S MITH ,

                                               Defendants-Appellees.
                              ____________________

Before:
                      W INTER , C HIN , and D RONEY , Circuit Judges.

                              ____________________

                Appeal from a judgment of the United States

District Court for the Eastern District of New York

(Weinstein, J.) granting summary judgment in favor of

defendants-appellants and dismissing plaintiff-appellant's

discrimination and retaliation claims under federal, state,

and New York City law.

                A FFIRMED .
                       ____________________

                                ALAN E. WOLIN, Wolin & Wolin,
                                      Jericho, New York, for
                                      Plaintiff-Appellant.

                               E DWARD F.X. H ART & D RAKE A. C OLLEY ,
                                     of Counsel, for Michael A.
                                     Cardozo, Corporation
                                     Counsel of the City of New
                                     York, New York, New York,
                                     for Defendants-Appellees.
                       ____________________

P ER C URIAM :

             Plaintiff-appellant Gladys Sotomayor appeals from

the district court's judgment dismissing her claims of

employment discrimination and retaliation under federal,

state, and New York City law.       We hold that the district

court properly granted summary judgment dismissing her

claims.      Accordingly, we affirm.

                             BACKGROUND

             Sotomayor, a schoolteacher, is a fifty-six year

old woman of Hispanic descent.         She has been employed by

the New York City Department of Education since 1999.

Sotomayor claims that, beginning in the 2007-2008 school

year, defendants unfairly reprimanded her, observed her

classroom with unusual frequency, evaluated her classroom

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performance negatively, and gave her less desirable

classroom assignments and duties.     She argues that these

actions were unwarranted and motivated by discriminatory

and retaliatory animus.    Defendants acknowledge that they

increased their supervision of and attention toward

Sotomayor, but they contend they did so to address her

performance and behavioral issues.

            Sotomayor filed a complaint against defendants

raising claims pursuant to the Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 621 et seq.; Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.;

the Civil Rights Act of 1866, 42 U.S.C. § 1983; the New

York State Human Rights Law, N.Y. Exec. Law § 290 et seq.;

and the New York City Human Rights Law, N.Y.C. Admin. Code

§ 8-101 et seq., claiming that she was discriminated and

retaliated against on the basis of her age, race, and

national origin.    In addition, she asserts that defendants

violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C.

§ 2601 et seq.

            After discovery, defendants moved for summary

judgment.    On May 24, 2012, the district court issued a

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Memorandum, Order & Judgment granting the motion in favor

of defendants and dismissing all of plaintiff's claims.

Sotomayor v. City of N.Y., 862 F. Supp. 2d 226 (E.D.N.Y.

2012).    This appeal followed.

                          DISCUSSION

           We review de novo a district court's grant of

summary judgment after construing all evidence, and drawing

all reasonable inferences, in favor of the non-moving

party.    McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d

92, 96 (2d Cir. 2009).    Summary judgment is appropriate

only when "there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of

law."    Fed. R. Civ. P. 56(a).

           We have conducted a de novo review of the record,

and we conclude that the district court properly granted

summary judgment in favor of defendants for substantially

the reasons articulated by the district court in its

thorough and well-reasoned Memorandum, Order & Judgment.

See Sotomayor, 862 F. Supp. 2d 226.

           With respect to Sotomayor's retaliation claims,

however, the district court discussed retaliation only in

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the context of the FMLA.   See id. at 261-62 (declining to

otherwise address allegations of retaliation because

plaintiff never alleged that she had participated in other

"protected activity" under federal, state, or city laws).

We note that Sotomayor asserted a broader claim of

retaliation; her Amended Complaint contends that defendants

retaliated against her after she filed a notice of claim,

filed a discrimination charge with the U.S. Equal

Employment Opportunity Commission, and began this action.

SDNY ECF No. 13.   Nonetheless, we have independently

reviewed the record and conclude that, even if we assumed

defendants' actions resulted in an adverse employment

action, no reasonable jury could find that such actions

were motivated by a retaliatory animus.   See, e.g., N.Y.C.

Admin. Code § 8-107(7) (prohibiting retaliation "in any

manner," even absent an adverse employment action) ; Terry

v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003) (Title VII

& ADEA); Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir.

1997) (claims brought under New York state law are

"analytically identical" to those raised under Title VII).




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                         CONCLUSION

         For the foregoing reasons, we AFFIRM the judgment

of the district court.




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