    17-3417
    Russell v. Aid to Developmentally Disabled, Inc.


                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 October, two thousand eighteen.

    PRESENT:
                       Guido Calabresi,
                       Debra Ann Livingston,
                             Circuit Judges,
                       Lorna G. Schofield,*
                             District Judge.

    _____________________________________

    Faye Russell,

                                 Plaintiff-Appellant,

                       v.                                                     17-3417

    Aid to Developmentally Disabled, Inc., Donald
    Reib, Individually and as Executive Director of
    Aid to Developmentally Disabled, Inc., Stacey
    Rhodes, Individually and as Residential
    Manager of Aid to Developmentally Disabled,
    Inc., Shirley Wanat, Individually and as
    Program Director for Aid to Developmentally
    Disabled, Inc., Christina Noll, Individually and
    as Human Resources Manager, Aid to
    Developmentally Disabled, Inc.,

    * Judge Lorna G. Schofield, of the United States District Court for the Southern District of New
    York, sitting by designation.
                      Defendants-Appellees,

Sallyann Burgess, Individually and as Quality
Assurance Manager, Aid to Developmentally
Disabled, Inc., Victor Taylor, Individually,
Gerald Huber, Individually,
Richard Lopez, Individually,

                      Defendants.

_____________________________________


FOR PLAINTIFF-APPELLANT:                            Faye Russell, pro se, East Hampton, N.Y.

FOR DEFENDANTS-APPELLEES:                           John J. Porta, Esq. (Richard Bahrenburg,
                                                    Esq., Collin O’Connor Udell, Esq., Marc S.
                                                    Wenger, Esq., on the brief), Jackson Lewis
                                                    P.C., Melville, N.Y.

       Appeal from judgment of the United States District Court for the Eastern District of New

York (Hall, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Faye Russell (“Russell”), proceeding pro se, appeals from the district court’s

grant of summary judgment in favor of Defendants Aid to Developmentally Disabled, Inc.

(“ADD”), her former employer, and Donald Rieb, Stacey Rohde, Paula Wanat, and Christina

Noll, 1 Plaintiffs’ former supervisors and coworkers, on her claims of gender discrimination

pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,2 and the New York State

Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and retaliation pursuant to the



1
  We, like the district court, spell Defendants’ names as they are spelled in their own
submissions.
2
  The Title VII claim is asserted only against ADD as Title VII does not apply to coworkers and
supervisors. See Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014).
NYSHRL. She also appeals from the district court’s denial, in part, of her motion for leave to

amend her second amended complaint. We assume the parties’ familiarity with the underlying

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

I. Summary Judgment

          “We review de novo the award of summary judgment, ‘constru[ing] the evidence in the

light most favorable to the [nonmoving party]’ and ‘drawing all reasonable inferences and

resolving all ambiguities in [its] favor.’” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018)

(alterations in original) (quoting Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017)).

Nonetheless, “conclusory statements, conjecture, or speculation by the party resisting the motion

will not defeat summary judgment.” Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018)

(internal quotation marks omitted) (quoting Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.

1996)).

          In determining the undisputed facts for purposes of the summary judgment motion, the

district court determined that Russell generally did not comply with Local Civil Rule 56.1 of the

Southern and Eastern Districts of New York, which provides that “[e]ach numbered paragraph in

the statement of material facts set forth in the statement required to be served by the moving party

will be deemed to be admitted for purposes of the motion unless specifically controverted by a

correspondingly numbered paragraph in the statement required to be served by the opposing

party.” See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing

party then fails to controvert a fact so set forth in the moving party’s Rule 56.1 statement, that fact

will be deemed admitted.”). In analyzing Russell’s Statement of Disputed Facts in Opposition to

Defendants’ Rule 56.1 Statement, the district court deemed admitted: (1) those facts that Russell—

                                                  3
who was then represented by counsel—responded to by stating, for example, she “lacks sufficient

knowledge or information to admit or deny”; (2) statements of denial that were not supported by

citations to record evidence, or cited, for example, an entire deposition transcript without a point

cite; and (3) responses where Russell stated she could not admit or deny as worded, or lacked

information sufficient to admit or deny Defendants’ facts. In a case such as this, containing

extensive filings and voluminous exhibits, where the district court conducted “at least some

scrutiny of the record independent of [Russell’s] Local Rule 56.1 statement,” Holtz v. Rockefeller

& Co., 258 F.3d 62, 73 (2d Cir. 2001), and defendants properly cited to the record to support their

facts, the district court did not abuse its discretion in requiring compliance with the Local Rule and

crediting as undisputed those facts that Russell did not properly controvert in her opposition. See

N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs. Inc., 426 F.3d 640, 648-

49 (2d Cir 2005) (“Rules governing summary judgment practice are essential tools for district

courts, permitting them to efficiently decide summary judgment motions by relieving them of the

onerous task of hunting through voluminous records without guidance from the parties.” (internal

quotation marks and brackets omitted)).

       The district court properly granted summary judgment to Defendants on the Title VII and

NYSHRL gender discrimination claims. Both claims are governed by the familiar McDonnell

Douglas three-step burden-shifting framework, under which a plaintiff must first make out a prima

facie case of discrimination by showing that “(1) she was within the protected class; (2) she was

qualified for the position; (3) she was subject to an adverse employment action; and (4) the adverse

action occurred under circumstances giving rise to an inference of discrimination.” Walsh v.

N.Y.C. Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016) (internal quotation marks omitted); see

                                                  4
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). The burden of production

then shifts to the defendant to demonstrate a legitimate, non-discriminatory reason for the adverse

employment action. If the defendant succeeds, “the plaintiff’s admissible evidence must show

circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's

employment decision was more likely than not based in whole or in part on discrimination.”

Walsh, 828 F.3d at 75 (internal quotation marks omitted).

       The district court held that Russell failed to establish a prima facie case of gender

discrimination because she could not satisfy the fourth prong of that test. Based on the record

before the district court, the evidence was insufficient to show that Russell’s termination occurred

under circumstances giving rise to an inference of discrimination. Russell attempted to raise an

inference of discrimination by identifying male employees who she claimed were not disciplined

for violating company policies.         For comparator evidence to establish an inference of

discrimination, the plaintiff must show that the comparators were “similarly situated in all material

respects.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (internal quotation marks

omitted). An inference of discrimination does not arise here because Russell failed to point to

any evidence showing that the male comparators’ conduct was as extreme as hers. She also

admitted that she did not know whether the comparators were disciplined for engaging in

misconduct.

       Moreover, the district court properly held that Russell’s gender discrimination claims failed

as well under the second and third prongs of the McDonnell Douglas burden-shifting framework.

Russell was terminated in part for violating ADD’s attendance policy, outlined in its employee

handbook, which set forth rules regarding lateness and absenteeism. It was undisputed that

                                                   5
Russell was absent 44 times and late 85 times between February 2009 and January 2010.

Applying ADD’S neutral attendance policy is “a neutral reason for the complained of action.”

See Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014); see also Raytheon Co. v.

Hernandez, 540 U.S. 44, 51–52 (2003) (applying McDonnell Douglas to an Americans with

Disabilities Act claim to find that a neutral no-rehire policy was “by definition, a legitimate,

nondiscriminatory reason” for the employer’s failure to rehire the plaintiff). Russell pointed to

no evidence that the enforcement of the attendance policy was a pretext for gender discrimination.3

Russell’s comparator evidence fails to establish pretext because there is insufficient evidence that

her male comparators were similarly situated to her, and because the record shows that ADD

disciplined male employees and even terminated them for conduct similar to, or even less

egregious than, Russell’s. Accordingly, the district court properly granted summary judgment

on the discrimination claims.

       The district court also properly granted summary judgment on Russell’s NYSHRL

retaliation claim, analyzed under the same McDonnell Douglas burden-shifting framework as Title

VII retaliation claims. See Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013). To make

out a prima facie case of retaliation, a plaintiff must show that: “(1) she engaged in a protected

activity; (2) her employer was aware of this activity; (3) the employer took adverse employment

action against her; and (4) a causal connection exists between the alleged adverse action and the



3
  Indeed, Russell repeatedly alleged that the application of the attendance policy to terminate her
was pretext for something else entirely—namely, the complaints she allegedly made about
treatment of the residents at the facility where she worked. However, even if these claims were
nonconclusory and properly supported by evidence, they would not bring her termination within
the ambit of Title VII or the NYSHRL.

                                                 6
protected activity.” Id. (quoting Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir.

2006)). “Once a prima facie case of retaliation is established, the burden of production shifts to

the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action.”

Id. (quoting Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001)). If the employer demonstrates

such a reason, the burden shifts back to the plaintiff to adduce evidence from which a rational

finder of fact could infer “that the desire to retaliate was the but-for cause of the challenged

employment action.” See Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015)

(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)).

       Russell’s retaliation claim, like her gender discrimination claims, foundered on the fourth

prong of the prima facie test; the evidence in the record is insufficient to show a causal connection

between her termination and her complaints about disparate treatment based on gender.

Although she asserted that she complained to others at ADD about gender discrimination and

differential treatment, she could not recall when she made any of those complaints. Without

being able to rely on temporal proximity between the complaints and her termination, Russell

failed to make out a prima facie case of retaliation. See Zann Kwan v. Andalex Grp. LLC, 737

F.3d 834, 845 (2d Cir. 2013) (holding that the plaintiff demonstrated causation at the prima facie

stage because there was only a three-week gap between her complaint and her termination). The

district court did not err in granting summary judgment on this claim.

II. Denial of Motion to Amend

       We review the denial of a motion to amend for abuse of discretion. See Pangburn v.

Culbertson, 200 F.3d 65, 70 (2d Cir. 1999); see also Anderson News, L.L.C. v. Am. Media, Inc.,

680 F.3d 162, 185 (2d Cir. 2012) (“An abuse of discretion may consist of an erroneous view of

                                                 7
the law, a clearly erroneous assessment of the facts, or a decision that cannot be located within the

range of permissible decisions.”). “Leave to amend may properly be denied if the amendment

would be futile, as when the proposed new pleading fails to state a claim on which relief can be

granted.” Id. (internal citation omitted). The district court denied Russell’s motion to amend

her complaint to add (1) a § 1983 claim against three New York State employees; (2) a New York

Labor Law § 740 claim; and (3) a NYSHRL retaliation claim against ADD employee Sallyann

Burgess. We discern no error in any of these determinations.

       Regarding Russell’s § 1983 claim, the district court held that Russell lacked standing

because she could not establish causation, i.e. “a fairly traceable connection between the asserted

injury-in-fact and the alleged actions of the defendant.” W.R. Huff Asset Mgmt. Co. v. Deloitte

& Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (internal quotation marks omitted). The

proposed claim failed to allege facts from which it could be inferred that the putative state

defendants’ failure to address Russell’s complaints was related to the decision to terminate her.

Accordingly, the district court did not abuse its discretion in denying the motion to amend to add

this claim.

       The district court held that the proposed claim under New York Labor Law § 740 was,

inter alia, time barred. Section 740 creates a cause of action in favor of an employee against

whom an employer has retaliated for disclosing to a public body the employer’s violation of the

law which “creates and presents a substantial and specific danger to the public health or safety.”

N.Y. Labor Law § 740(2)(a). The applicable statute of limitations for such claims is one year.

Id. § 740(4)(a). The alleged retaliation—Russell’s termination—occurred on July 6, 2010. She

filed her initial complaint on January 27, 2012, over six months after the statute of limitations

                                                 8
expired. Accordingly, the district court did not abuse its discretion in denying leave to amend to

add this cause of action.

       Nor did the district court abuse its discretion by denying Russell’s motion to amend to add

an NYSHRL retaliation claim against ADD employee Burgess. When it dismissed the NYSHRL

retaliation claim against Burgess in Russell’s first amended complaint, the district court provided

an explanation of the pleading deficiencies. Russell was given another opportunity to attempt to

establish Burgess’s liability in her proposed amended complaint. The district court held that the

new allegations also failed to allege facts showing that Burgess contributed in any way to Russell’s

termination or engaged in any discrimination or retaliation involving Russell. Because Russell,

when provided an opportunity, did not cure the deficiencies in this claim, the district court was not

required to give her another opportunity to cure deficiencies that she had already failed to correct.

       On September 27, 2018, Defendants filed a motion to strike certain materials that Russell

attempted to add into the record via a letter, which was received by the Court on September 20,

2018. However, given that Russell requested that we withdraw that letter, which we allowed, we

now DENY Defendants’ motion as moot.

       We have considered Russell’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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