12-1601-cv
Serby v. N.Y.C. Dep't of Educ.


                  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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 20th day of May, two thousand thirteen.

PRESENT:    DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                      Circuit Judges,
            JOHN F. KEENAN,
                      District Judge.*

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ANNE SERBY,
                        Plaintiff-Appellant,

                        -v-                                  12-1601-cv

NEW YORK CITY DEPARTMENT OF EDUCATION,
FKA Board of Education of the City School
District of the City of New York, CITY OF
NEW YORK, JOEL I. KLEIN, as Chancellor of
the City School District of the City of
New York, MIATHERESA PATE-ALEXANDER,
individually and in her official capacity
as Principal of IS 109 Q, FKA Miatheresa
Pate, KARLEEN ADAM COMRIE, individually

      *
          The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
and in her official capacity as Assistant
Principal of IS 109 Q, LENON MURRAY,
individually and in his official capacity
as Community Superintendent of New York
State School District 29,
                    Defendants-Appellees.**

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FOR PLAINTIFF-APPELLANT:        VICTOR M. SERBY, Law Office of
                                Victor M. Serby, Esq., Woodmere,
                                New York.

FOR DEFENDANTS-APPELLEES:       SCOTT SHORR, Assistant Corporation
                                Counsel (Francis F. Caputo, on the
                                brief), for Michael A. Cardozo,
                                Corporation Counsel of the City of
                                New York, New York City Law
                                Department, New York, New York.

            Appeal from the United States District Court for the

Eastern District of New York (Mauskopf, J.).

            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

            Plaintiff-appellant Anne Serby appeals from a judgment

of the United States District Court for the Eastern District of

New York (Mauskopf, J.), entered March 21, 2012 pursuant to a

memorandum and order entered March 19, 2012, granting defendants'

motion for summary judgment and denying Serby's cross-motion for

partial summary judgment.    Serby, formerly a probationary teacher

employed by the New York City Department of Education (the


     **
          The Clerk of Court is directed to amend the official
caption to conform to the above.


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"DOE"), brought this action against defendants-appellees the City

of New York, the DOE, and individual administrators at IS 109 Q,

the City School District, and School District 29 (collectively,

the "School"), asserting claims under the Family and Medical

Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., the New York State

Human Rights Law, N.Y. Exec. L. § 290 et seq., and the New York

City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.     On

appeal, Serby challenges only the district court's grant of

summary judgment to the School on her FMLA retaliation claim.      We

assume the parties' familiarity with the underlying facts, the

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

         We review de novo a district court's grant of summary

judgment, construing the evidence and drawing all reasonable

inferences in the non-moving party's favor.    Gorzynski v. JetBlue

Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010).

         The FMLA entitles eligible employees to twelve

workweeks per year of unpaid leave for, inter alia, a serious

health condition that makes the employee unable to perform her

job functions.   See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161,

174 (2d Cir. 2006).   At the end of an employee's FMLA leave, she

has a qualified right to return to the position she held before

the leave or its equivalent.   See id.   The FMLA creates a private

right of action for an employee to seek both equitable relief and

money damages against any employer that interferes with,


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restrains, or denies the exercise of FMLA rights.     See id.

(citing Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25

(2003)).

           We have analyzed retaliation claims pursuant to the

FMLA under the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).     See, e.g., Potenza v. City

of New York, 365 F.3d 165, 167-68 (2d Cir. 2004) (per curiam).

To establish a prima facie case of FMLA retaliation, Serby must

show that (1) she exercised rights protected under the FMLA, (2)

she was qualified for her position, (3) she suffered an adverse

employment action, and (4) the adverse employment action occurred

under circumstances giving rise to an inference of retaliatory

intent.    See id. at 168.   The parties agree that the first three

elements are satisfied.

           If Serby establishes a prima facie case, then the

burden shifts to the School to articulate a legitimate, non-

discriminatory reason for its actions.     McDonnell Douglas, 411

U.S. at 802.    If the School carries its burden, Serby must then

demonstrate that the School's articulated reason was pretextual.

See Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d

81, 92 (2d Cir. 2011) (citing McDonnell Douglas, 411 U.S. at 804-

05).

           The district court concluded that Serby failed to

present evidence upon which a reasonable jury could find that the


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School's articulated reason for terminating Serby's employment --

her poor performance -- was pretextual.   We agree.

          First, Serby does not challenge the accuracy of the two

unfavorable ratings.   In fact, Serby admitted to a colleague that

she had difficulty with class management.   Moreover, the evidence

demonstrates that her two evaluators -- Principal Miatheresa

Pate-Alexander and Assistant Principal Karleen Adam-Comrie -- had

objective bases for the unfavorable ratings, including, for

example, Serby's difficulties managing her students.   Serby

disagrees, apparently, with the School's judgment that chewing

gum and wearing hoods in class are serious concerns, but we have

no basis to second-guess these educational policy decisions, and

these disagreements do not support her claim of retaliation.

          Second, Serby argues that a jury could reasonably find

that the timing of her "unsatisfactory" ratings evinces

retaliatory intent, i.e., that after she returned from FMLA

leave, she was given two unfavorable ratings only four business

days apart and denied any opportunity for further observation.

Those evaluations, however, were not conducted until April 2 and

8, 2008, more than eight weeks after Serby returned from leave.

Moreover, in light of all the circumstances, there is nothing

about the timing of the evaluations to suggest a retaliatory

intent.




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            Third, Serby points to a reference by the Chairperson

of the Chancellor's Committee (the "Chairperson") to Serby's

"twenty-three (23) consecutive days of absences."    In context,

however, as a reasonable jury could only find, the Chairperson

was merely responding to Serby's argument that she was not given

opportunity for further observation.    To rebut this explanation

of the Chairperson's statement, Serby was obliged to produce "not

simply some evidence, but sufficient evidence to support a

rational finding that the legitimate, non-discriminatory reasons

proffered by [the School] were false, and that more likely than

not discrimination was the real reason for the employment

action."    Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.

2000) (alterations and internal quotation marks omitted).    She

failed to do that.

            We agree with the district court that Serby's claim

also fails using a mixed-motive analysis.    To satisfy her initial

burden in a mixed-motive case, a plaintiff must "produce a

smoking gun or at least a thick cloud of smoke to support [her]

allegations of discriminatory treatment."    Raskin v. Wyatt Co.,

125 F.3d 55, 61 (2d Cir. 1997) (internal quotation marks

omitted).   Having presented no such evidence, Serby has failed to

satisfy this initial burden.    Because Serby's claim fails under

either the McDonnell Douglas burden-shifting framework or the




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mixed-motive analysis, we need not decide which applies to an

FMLA retaliation claim.

         We have considered Serby's remaining arguments and

conclude they are without merit.       Accordingly, the district

court's judgment is AFFIRMED.

                          FOR THE COURT:
                          Catherine O'Hagan Wolfe, Clerk




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