10-4043-cv
Vargas v. Morgan Stanley

                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.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9th day of September, two thousand eleven.

PRESENT:
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                           Circuit Judges,
            EDWARD R. KORMAN,
                           District Judge.*
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RUBEN VARGAS,
          Plaintiff-Appellant,

                  -v.-                                        10-4043-cv

MORGAN STANLEY, MORGAN STANLEY & CO., INC.,
JOHN ROBINSON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY,
          Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:             SHAFFIN A. DATOO (Kenneth P.
                                     Thompson, on the brief), Thompson
                                     Wigdor & Gilly, LLP, New York, New
                                     York.


      *
          The Honorable Edward R. Korman, of the United States
District Court for the Eastern District of New York, sitting by
designation.
FOR DEFENDANTS-APPELLEES:       J. MICHAEL RIORDAN (Cora E.
                                MacLean, on the brief), McElroy,
                                Deutsch, Mulvaney & Carpenter, LLP,
                                New York, New York.

           Appeal from the United States District Court for the

Southern District of New York (Daniels, J.).    UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED in part and

VACATED AND REMANDED in part.

           Plaintiff-appellant Ruben Vargas appeals from a

decision of the United States District Court for the Southern

District of New York, filed September 29, 2010, granting summary

judgment in favor of defendants Morgan Stanley, Morgan Stanley &

Co. Incorporated (together, the "Company"), and Vargas's

supervisor, John Robinson.   Vargas commenced this action against

defendants on November 5, 2008, alleging disparate treatment and

unlawful termination on account of his race, color, and national

origin under Title VII, 42 U.S.C. §§ 2000e et seq. ("Title VII");
42 U.S.C. § 1981 ("§ 1981"); the New York State Human Rights Law

("NYSHRL"), N.Y. Exec. Law §§ 290 et seq. (McKinney 2009); and
the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code

§§ 8-101 et seq.   Familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal is

assumed.

           We review a grant of summary judgment de novo.

Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir. 2000).

Summary judgment is appropriate if there is no genuine dispute as


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to any material fact, and the moving party is entitled to

judgment as a matter of law.   Fed. R. Civ. P. 56(a).   In making

this determination, "the court must 'assess the record in the

light most favorable to the non-movant and . . . draw all

reasonable inferences in [the non-movant's] favor.'"    Weinstock,

224 F.3d at 41 (quoting Del. & Hudson Ry. Co. v. Consol. Rail

Corp., 902 F.2d 174, 177 (2d Cir. 1990)).

            Vargas, a Hispanic male of Puerto Rican descent, joined

the Company as a research associate in its Fixed Income Division

in August 2004.    He was transferred to its Investment Grade Sales

Group (the "IGSG") as a credit sales associate in July 2005.

Vargas alleges that after the Company appointed Robinson head of

IGSG in May 2006, he was subjected to disparate treatment in his

employment until his termination on October 17, 2007 as part of a

Reduction in Force ("RIF").    At all relevant times, Vargas was

the only Hispanic credit sales associate in the IGSG.

            At summary judgment, the district court determined

that:    (1) Vargas failed to make out a prima facie case of

discrimination with respect to his termination claim; (2) the

relevant statute of limitations barred all of his pre-termination

claims, or alternatively, he failed to establish a prima facie

case; and (3) his claims under § 1981, the NYSHRL, and the NYCHRL

were not viable because they were analyzed under the same

standards as Title VII.1

     1
          The standard of proof for claims brought under § 1981
and the NYSHRL is identical to that of Title VII claims. See
Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010)
(addressing § 1981 claims); Torres v. Pisano, 116 F.3d 625, 629
n.1 (2d Cir. 1997) (addressing NYSHRL claims).

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          On appeal, Vargas challenges the district court's

rulings that he has failed to establish a prima facie case of

disparate treatment and that all of his pre-termination claims

are time-barred.   See Patterson v. Cnty. of Oneida, 375 F.3d 206,

225 (2d Cir. 2004) (defining three-year limitations period in New

York for § 1981 claims); N.Y. C.P.L.R. § 214(2) (McKinney 2009)

(same, for NYSHRL claims).   We hold that, timely or not, his

Title VII, § 1981, and NYSHRL claims are not actionable.

Although Vargas raises fair issues regarding whether he has shown

that defendants' pre-termination conduct could be considered

"adverse employment actions," and as to the timeliness of his

claims under § 1981 and NYSHRL, for the reasons that follow, we

conclude that Vargas's pre-termination and termination claims

fail as a matter of law under Title VII, § 1981, and the NYSHRL.

          The "ultimate issue" in an employment discrimination

case is whether the alleged adverse action was motivated at least

in part by an impermissible discriminatory reason.    Fields v.
N.Y. State Office of Mental Retardation & Dev'l Disabilities, 115

F.3d 116, 119 (2d Cir. 1997).   Where an employer has proffered a

legitimate, non-discriminatory reason for an action, a plaintiff

will survive a motion for summary judgment only by adducing

evidence that would allow a reasonable jury to infer that "it is

more likely than not that [plaintiff] was subjected to [that

action] based on an illegal discriminatory motive."    Greenway v.
Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998) (citing St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 511 (1993)).       In


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other words, even if the employer's reasons are rejected, "absent

some evidence that it was motivated by discriminatory

intent . . . , bad treatment does not establish a violation of

Title VII."   Pollis v. New Sch. for Soc. Research, 132 F.3d 115,

124 (2d Cir. 1997) (emphasis added).

           Upon reviewing the record, we conclude that Vargas did

not produce evidence sufficient to support an inference that

defendants' stated reasons for their employment decisions were

pretextual or that Vargas's race, color, or national origin was a

motivating factor in defendants' decisions.   Vargas contends that

he was treated less favorably than other employees, but he does

so in conclusory fashion, without offering any concrete evidence

to show that any of the purported mistreatment was the result of

discriminatory animus.   At best, the uniformly race-neutral

incidents Vargas points to in the record reflect that Robinson

singled him out because he "disliked" Vargas or his facial hair,

or "treated him badly" due to a "personal agenda," none of which

is sufficient to suggest animus motivated by Vargas's protected

status.   Idrees v. City of New York, No. 04 Civ. 2197 (GWG), 2009
WL 142107, at *10 (S.D.N.Y. Jan. 21, 2009); see also Alfano v.

Costello, 294 F.3d 365, 378 (2d Cir. 2002) (holding that "some

circumstantial or other basis" is necessary for inference that

incidents "neutral on their face were in fact discriminatory").

           With respect to Vargas's claims under the NYCHRL,

however, we find that the district court erred in dismissing them

under the same analysis it applied to his federal and state

                                -5-
claims.   Pursuant to the New York City Civil Rights Restoration

Act, N.Y.C. Local Law No. 85 (2005), "courts [must] be sensitive

to the distinctive language, purposes, and method of analysis

required by the [NYCHRL], requiring an analysis more stringent

than that called for under either Title VII or the [NYSHRL]."

Williams v. N.Y.C. Housing Auth., 872 N.Y.S.2d 27, 30-31 (1st

Dep't 2009); see Loeffler v. Staten Island Univ. Hosp., 582 F.3d

268, 278 (2d Cir. 2009) (confirming that "claims under the

[NYCHRL] must be reviewed independently from and 'more liberally'

than their federal and state counterparts") (quoting Williams,
872 N.Y.S.2d at 31).

            The district court failed to analyze Vargas's City

claims independently from his federal and state law claims, and

we will not resolve these claims in the first instance.

Accordingly, we remand the NYCHRL claims to the district court,

to consider whether to exercise supplemental jurisdiction over

them pursuant to 28 U.S.C. § 1367(c), and if it decides to do so,

to consider the NYCHRL claims under the appropriate standard,

separate and apart from the federal and state claims.

            We therefore VACATE the district court's judgment with

respect to Vargas's NYCHRL claims and REMAND those claims to the

district court to determine whether to exercise supplemental

jurisdiction or to dismiss without prejudice to refiling in state

court.    We AFFIRM the district court's judgment in all other

respects.

                                       FOR THE COURT:
                                       CATHERINE O'HAGAN WOLFE, CLERK



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