     09-3975-cv
     Barkley v. Penn Yan Cent. Sch. Dist.


                                   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 for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 6th day of September, two thousand eleven.
 4
 5   PRESENT:           DEBRA ANN LIVINGSTON,
 6                      DENNY CHIN,
 7                      RAYMOND J. LOHIER, JR.,
 8                                      Circuit Judges.
 9
10
11   BONNIE BARKLEY,
12             Plaintiff-Appellant,
13
14            -v.-                                               No. 09-3975-cv
15
16   PENN YAN CENTRAL SCHOOL DISTRICT,
17             Defendant-Appellee.
18
19
20                                          Bonnie Barkley, pro se, Penn Yan, New York.
21
22                                          Frank W. Miller, The Law Firm of Frank W. Miller, East Syracuse,
23                                          New York, for Defendant-Appellee.
24
25
26            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

27   DECREED that the judgment of the district court be AFFIRMED.

28            Plaintiff-Appellant Bonnie Barkley (“Barkley” or “Appellant”), pro se, appeals from a
 1   judgment of the United States District Court for the Western District of New York (Telesca, J.),

 2   entered August 26, 2009, granting summary judgment for Defendant-Appellee Penn Yan Central

 3   School District (“the School District” or “Appellee”) as to Barkley’s claims of retaliation in

 4   violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and

 5   the New York State Human Rights Law (“NYSHRL”), N.Y. EXEC. LAW § 296 (McKinney 2010).

 6   We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

 7   the issues presented on appeal.

 8           We review a district court’s grant of summary judgment de novo, and “will uphold the

 9   judgment only if the evidence, viewed in the light most favorable to the party against whom it is

10   entered, demonstrates that there are no genuine issues of material fact and that the judgment was

11   warranted as a matter of law.” Molinari v. Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009) (internal

12   quotation marks omitted). Although “the burden is upon the moving party to demonstrate that no

13   genuine issue respecting any material fact exists,” Gallo v. Prudential Residential Servs., Ltd.

14   P’Ship, 22 F.3d 1219, 1223 (2d Cir. 1994), the non-moving party nonetheless must “come forward

15   with specific facts showing that there is a genuine issue of material fact for trial,” Shannon v. N.Y.C.

16   Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003).            “Conclusory allegations, conjecture, and

17   speculation . . . are insufficient to create a genuine issue of fact.” Id. (internal quotation marks

18   omitted; alteration in original); see also Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002) (noting

19   that “reliance upon conclusory statements or mere allegations is not sufficient” at this stage).

20           In addressing a motion for summary judgment as to employment discrimination claims, “[a]

21   trial court must be cautious about granting summary judgment to an employer when . . . its intent

22   is in issue,” and “affidavits and depositions must be carefully scrutinized for circumstantial proof


                                                        2
 1   which, if believed, would show discrimination.” Gallo, 22 F.3d at 1224. Nevertheless, “[s]ummary

 2   judgment is appropriate even in discrimination cases, for . . . the salutary purposes of summary

 3   judgment—avoiding protracted, expensive and harassing trials—apply no less to discrimination

 4   cases than to other areas of litigation.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)

 5   (internal quotation marks and alteration omitted); see also Abdu-Brisson v. Delta Air Lines, Inc., 239

 6   F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary judgment may be appropriate

 7   even in the fact-intensive context of discrimination cases.”).

 8          Retaliation claims brought pursuant to Title VII and the NYSHRL are analyzed under the

 9   familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

10   802-05 (1973). See Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010); see also

11   Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000) (observing that “[o]ur consideration

12   of claims brought under the state . . . human rights laws parallels the analysis used in Title VII

13   claims”). A plaintiff alleging retaliation in violation of Title VII must first establish a prima facie

14   case of discrimination, by demonstrating that “(1) she was engaged in an activity protected under

15   Title VII; (2) the employer was aware of plaintiff’s participation in the protected activity; (3) the

16   employer took adverse action against plaintiff; and (4) a causal connection existed between the

17   plaintiff’s protected activity and the adverse action taken by the employer.” Mack v. Otis Elevator

18   Co., 326 F.3d 116, 129 (2d Cir. 2003) (internal quotation marks omitted). If the plaintiff succeeds

19   in establishing a prima facie showing of discrimination, then the burden shifts to the employer to

20   “articulate some legitimate, nondiscriminatory reason” for the adverse employment action.

21   McDonnell Douglas, 411 U.S. at 802. The defendant “must clearly set forth, through the

22   introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact,


                                                       3
 1   would support a finding that unlawful discrimination was not the cause of the employment action.”

 2   St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal quotation marks omitted;

 3   emphasis in original).

 4          Finally, once the defendant proffers a legitimate, nondiscriminatory reason for the challenged

 5   action, “the presumption of discrimination arising with the establishment of the prima facie case

 6   drops from the picture.” Weinstock, 224 F.3d at 42. The burden then shifts back to the plaintiff to

 7   “come forward with evidence that the defendant’s proffered, non-discriminatory reason is a mere

 8   pretext for actual discrimination.” Id. This requires the plaintiff to produce “not simply some

 9   evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory

10   reasons proffered by the employer were false, and that more likely than not discrimination was the

11   real reason” for the challenged action. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d

12   Cir. 1996) (internal quotation marks and alteration omitted) (requiring that a plaintiff produce

13   something more “than conclusory allegations”). Moreover, “a reason cannot be proved to be ‘a

14   pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination

15   was the real reason.” Hicks, 509 U.S. at 515 (emphasis in original).

16          As an initial matter, Barkley, proceeding through counsel, conceded in the district court that

17   her NYSHRL claims are barred by the applicable three-year statute of limitations, see N.Y. C.P.L.R.

18   214(2) (McKinney 2003) (three-year limitations period for NYSHRL claims); see also Pl.’s Mem.

19   of Law in Opp’n to Def.’s Mot. for Summ. J., 6:05-cv-06492, Dkt. No. 32:9 at 6-7 (W.D.N.Y. Jan.

20   22, 2009) (conceding that “Plaintiff is outside of the three (3) year statute of limitations under the

21   NYSHRL” and “[t]herefore, Plaintiff’s claims under the NYSHRL should be dismissed”), and the

22   district court dismissed her NYSHRL claims on this basis. To the extent that Barkley attempts to


                                                       4
 1   argue otherwise on appeal, we consider any such arguments waived and decline to entertain them.

 2   Cf. Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999) (observing that an argument may

 3   be deemed waived where the litigant’s actions demonstrate the “intentional relinquishment of a

 4   known right”); see also In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008)

 5   (“It is a well-established general rule that an appellate court will not consider an issue raised for the

 6   first time on appeal.” (internal quotation marks omitted)).1

 7           Similarly, to the extent that Barkley asserts on appeal that she was subject to an “ongoing

 8   continuing pattern and practice of job discrimination” involving alleged instances of discrimination

 9   occurring prior to those alleged in her 2002 complaint to the New York State Division of Human

10   Rights (“DHR”), we find that such arguments are precluded by her concession in the district court

11   that such claims, though not actionable, could be considered merely as “admissible background

12   evidence.” Pl.’s Mem. of Law, supra, at 9-10. In any event, the record does not support a finding

13   that Barkley was subject to a “continuing violation” of her rights under Title VII, and the district

14   court correctly dismissed any claims based upon events other than those detailed in her 2002

15   complaint to DHR. See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)

16   (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts

17   alleged in timely filed charges.”); see also Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)

18   (“[M]ultiple incidents of discrimination, even similar ones, that are not the result of a discriminatory

19   policy or mechanism do not amount to a continuing violation.”), abrogated on other grounds by


             1
             In any event, Barkley’s NYSHRL claims fail for the same reasons as detailed below
     regarding her Title VII claims. Moreover, for similar reasons, we decline to consider
     Appellant’s argument that she received inadequate representation of counsel, since any
     arguments in this regard were not presented to the district court. See In re Nortel, 539 F.3d at
     132.
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 1   Kasten v. Saint-Gobain Performance Plastics Corp., 132 S. Ct. 1325 (2011).

 2          As for Barkley’s surviving claims of retaliation in violation of Title VII—those concerning

 3   the acts of retaliation as alleged in her 2002 complaint to DHR—we conclude that the district court

 4   did not err in granting summary judgment for the School District.2 As the district court correctly

 5   concluded, Barkley has fallen short of her burden of demonstrating a prima facie case of

 6   discrimination. Assuming, for the sake of argument, that Barkley has established the first three

 7   elements of a prima facie showing, discussed above, the record is devoid of evidence that “a causal

 8   connection existed between the plaintiff’s protected activity and the adverse action taken by the

 9   employer.” Mack, 326 F.3d at 129. Proof of such causation may be demonstrated either indirectly,

10   “by showing that the protected activity was followed closely by discriminatory treatment, or through

11   other circumstantial evidence such as disparate treatment of fellow employees who engaged in

12   similar conduct,” or directly, “through evidence of retaliatory animus directed against the plaintiff

13   by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). Here,

14   however, Barkley has failed to demonstrate causation, either directly or indirectly. The decision not

15   to retain Barkley’s services as a substitute teacher was not made until May 30, 2002—more than

16   eleven months following her latest prior complaint to DHR. Cf. Clark Cnty. Sch. Dist. v. Breeden,

17   532 U.S. 268, 273 (2001) (observing that “[t]he cases that accept mere temporal proximity between

18   an employer’s knowledge of protected activity and an adverse employment action as sufficient

19   evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must

20   be very close” (internal quotation marks omitted)).        Nor has Barkley presented sufficient


            2
              Given our conclusion that Barkley’s surviving Title VII claims fail on the merits, we
     need not address the School District’s argument that these claims are barred by principles of res
     judicata or collateral estoppel.

                                                      6
 1   circumstantial evidence of retaliatory animus, such as through disparate treatment of similarly-

 2   situated fellow employees. Under such circumstances, the district court appropriately concluded that

 3   Barkley failed to make a prima facie showing of discrimination.

 4           In any event, the district court also correctly concluded that the School District proffered a

 5   legitimate, non-discriminatory reason for its failure to retain Barkley as a substitute teacher, and

 6   Barkley has failed to demonstrate that this proffered reason is mere pretext. The record reveals

 7   ample evidence that members of the Board of Education were concerned about Barkley’s erratic,

 8   and sometimes aggressive, behavior. In opposition, Barkley points only to materials that either

 9   (1) comprise inadmissible hearsay or are not based on the personal knowledge of the affiant, in

10   contravention of Federal Rule of Civil Procedure 56, or (2) are conclusory in nature. See, e.g., Fed.

11   R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion [for summary

12   judgment] must be made on personal knowledge, set out facts that would be admissible in evidence,

13   and show that the affiant or declarant is competent to testify on the matters stated.”); see also Beyah

14   v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986) (noting that “[t]his requirement means that hearsay

15   testimony . . . that would not be admissible if testified to at trial may not properly be set forth in the

16   Rule 56(e) affidavit” (internal quotation marks and alterations omitted)). Contrary to Barkley’s

17   assertions on appeal, the record amply supports the School District’s contention that Barkley was

18   not retained as a substitute teacher due to personality and compatibility issues, rather than as a result

19   of her 2001 DHR complaint, and Barkley’s conclusory allegations to the contrary are insufficient

20   to survive summary judgment. See Van Zant, 80 F.3d at 714 (requiring that a plaintiff seeking to

21   demonstrate pretext produce something more “than conclusory allegations”).                  Under such

22   circumstances, the district court did not err in granting summary judgment for the School District.


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1            We have considered all of Plaintiff-Appellant’s remaining arguments and find them to be

2    without merit. Accordingly, the judgment of the district court is hereby AFFIRMED. In addition,

3    as we have our completed our review of this case, it is hereby ORDERED that Plaintiff-Appellant’s

4    motion for leave to file her reply brief out of time and Defendant-Appellee’s motion to strike that

5    reply as untimely are DENIED as moot, as are Plaintiff-Appellant’s motions for (1) an extension

6    of time to seek oral argument and (2) remand of the case to the district court.

7

 8                                                        FOR THE COURT:
 9                                                        Catherine O’Hagan Wolfe, Clerk
10




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