     09-2007-cv
     Testagrose v. NYC Housing Authority

 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                         SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
 8   BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
 9   W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
10   M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
11   NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
15   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
16   on the 11th day of March, two thousand ten.
17
18   Present:       JOSEPH M. McLAUGHLIN,
19                             Circuit Judge,
20                  KIMBA M. WOOD,*
21                             District Judge.**
22
23
24   _____________________________________________________
25
26   HELEN TESTAGROSE,
27
28                                                        Plaintiff-Appellant,
29
30                           -v-                                         (09-2007-cv)
31
32   NEW YORK CITY HOUSING AUTHORITY,
33
34                                                        Defendant-Appellee.
35
36
37   Appearing for Appellant:      Ambrose Wotorson, Law Office of Ambrose Wotorson, Brooklyn,
38                                 N.Y.


            *
             The Honorable Kimba M. Wood, United States District Court for the Southern District
     of New York, sitting by designation.
            **
                The Honorable Rosemary S. Pooler, originally a member of the panel, did not
     participate in consideration of this appeal. The two remaining members of the panel, who are in
     agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating
     Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 1   Appearing for Appellee:         Donna Murphy (Sonya Kaloyanides, on the brief), New York City
 2                                   Housing Authority, New York, N.Y.
 3
 4          Appeal from the United States District Court for the Eastern District of New York

 5   (Mauskopf, Judge.).

 6          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

 7   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

 8          Plaintiff-appellant appeals a March 31, 2009, memorandum and order of the district court

 9   granting defendant’s motion for summary judgment and dismissing plaintiff’s claims in their

10   entirety. Plaintiff alleges that she was terminated from her position as a caretaker for the New

11   York City Housing Authority (“NYCHA”) in violation of the Equal Protection Clause and 42

12   U.S.C. § 1983. Specifically, she alleges that she was disciplined more harshly than other

13   similarly situated male caretakers. This claim is evaluated under the same rubric as gender

14   discrimination claims brought under Title VII. See Back v. Hastings on Hudson Union Free Sch.

15   Dist., 365 F.3d 107, 123 (2d Cir. 2004). We assume the parties’ familiarity with the underlying

16   facts and procedural history.

17          The district court concluded that Testagrose had failed to present any evidence suggesting

18   that her termination was the result of discriminatory animus and thus that she had not established

19   a prima facie case of gender discrimination. We agree. To show discriminatory animus,

20   Testagrose primarily relied on evidence that other similarly situated male employees were treated

21   more favorably. However, these comparators were not similarly situated. The NYCHA

22   terminated Testagrose after she was arrested for weapons possession, drug possession, and

23   criminal mischief. The individuals Testagrose identifies as comparators either were not arrested

24   or were arrested for less serious offenses. Additionally, in the two cases involving arrests, one

25   comparator resigned before the disciplinary hearing, and the other pled guilty and accepted a

                                                      2
 1   suspension. In contrast, Testagrose did not offer to plead guilty or resign. Thus, none of the

 2   comparators was similarly situated to Testagrose “in all material respects.” See Shumway v.

 3   United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Moreover, all of the comparators

 4   were, like Testagrose, brought up on disciplinary charges. In other words, they were treated

 5   exactly the same as Testagrose. Therefore, having produced no evidence of discrimination,

 6   Testagrose failed to establish a prima facie claim of gender discrimination. See Back, 365 F.3d at

 7   123.

 8          Finally, the decision to terminate Testagrose was based on the recommendation of a Trial

 9   Officer, a neutral decision maker whom Testagrose does not accuse of discrimination. We have

10   held that “[w]here an employee’s ultimate termination depends upon, and is allowed by, a

11   decision of an independent and unbiased arbitrator based on substantial evidence after a fair

12   hearing, the arbitration decision has probative weight regarding the requisite causal link between

13   an employee’s termination and the employer’s illegal motive.” Collins v. N.Y.C. Transit

14   Authority, 305 F.3d 113, 115 (2d Cir. 2002). There is no evidence to suggest that the Trial

15   Officer in this case was biased or that Testagrose did not receive a fair hearing.

16          We have considered Testagrose’s other arguments and find them without merit.

17   Accordingly, the judgment of the district court hereby is AFFIRMED.

18
19                                                         FOR THE COURT:
20                                                         Catherine O’Hagan Wolfe, Clerk
21
22
23




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