     14-576-cv
     Ramlal-Nankoe v. Ithaca College

                          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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of January, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       MARGO RAMLAL-NANKOE,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-576
16
17       ITHACA COLLEGE,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        ROBERT RAMBADADT, The Rambadadt
22                                             Law Office, New York, New York.
23
24       FOR APPELLEE:                         SUBHASH VISWANATHAN, Bond,
25                                             Schoeneck & King, PLLC,
26                                             Syracuse, New York.
27
28            Appeal from a judgment of the United States District
29       Court for the Northern District of New York (Suddaby, J.).
30
 1        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 2   AND DECREED that the judgment of the district court be
 3   AFFIRMED.
 4
 5        Margo Ramlal-Nankoe appeals from the judgment of the
 6   United States District Court for the Northern District of
 7   New York (Suddaby, J.) granting summary judgment in favor of
 8   Ithaca College and granting the College’s motion for
 9   attorney’s fees incurred in connection with a motion to
10   compel discovery. We assume the parties’ familiarity with
11   the underlying facts, the procedural history and the issues
12   presented for review.
13
14        Upon de novo review, we conclude (for substantially the
15   reasons stated by the district court) that the grant of
16   summary judgment in favor of the College was proper.1 Rojas
17   v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d
18   Cir. 2011) (per curiam).
19
20        With respect to Ramlal-Nankoe’s religious
21   discrimination claim (to the extent one is even asserted),
22   the EEOC complaint does not assert discrimination based on
23   religion; she therefore failed to exhaust administrative
24   remedies, which is a precondition to suit. Holtz v.
25   Rockefeller & Co., 258 F.3d 62, 83-84 (2d Cir. 2001)
26   (affirming dismissal of religious discrimination “about
27   which the EEOC charge [was] entirely silent”). In addition,
28   Ramlal-Nankoe has not come forward with any evidence to
29   establish even a prima facie case of religious
30   discrimination. See Zahorik v. Cornell Univ., 729 F.2d 85,
31   92 (2d Cir. 1984); see also Tori v. Marist Coll., 344 F.
32   App’x 697, 699-700 (2d Cir. 2009) (summary order) (observing
33   that “courts are understandably reluctant to review the
34   merits of a tenure decision” and concluding that plaintiff’s
35   “discrimination claim fails because he has introduced no
36   evidence to suggest that the denial of tenure was motivated,
37   at least in part, by discrimination on the basis of race,
38   gender, marital status, or religion” (internal quotation
39   marks omitted)).
40
41        Ramlal-Nankoe argues that she made no election-of-
42   remedies with respect to the Tompkins County Human Rights
43   Commission and New York Human Rights Law. This argument is


         1
           Ramlal-Nankoe does not press her age discrimination
     claim on appeal.
                                  2
 1   contradicted by the record. “The District Court properly
 2   ruled that [these claims were] barred on the basis of
 3   election of remedies, in view of N.Y. Exec. Law § 297(9),
 4   which, with certain exceptions not applicable here,
 5   precludes resort to courts after claims have been filed with
 6   a local commission on human rights.” Desardouin v. City of
 7   Rochester, 708 F.3d 102, 106 (2d Cir. 2013).
 8
 9        As to the claims for breach of contract and for breach
10   of the implied covenant of good faith: “under New York law,
11   a university faculty member’s claims based upon the rights
12   or procedures found in college manuals, bylaws and handbooks
13   may only be reviewed by way of a special proceeding under
14   Article 78 of New York’s CPLR in New York State Supreme
15   Court.” Hengjun Chao v. Mount Sinai Hosp., 476 F. App’x
16   892, 895 (2d Cir. 2012) (summary order) (internal quotation
17   marks omitted).
18
19        The district court properly declined to invoke the
20   continuing violation doctrine to save Ramlal-Nankoe’s
21   untimely claims under Title VII and Section 1981. That
22   doctrine is inapplicable to “[d]iscrete acts such as
23   termination [and] failure to promote,” which “are easy to
24   identify.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
25   101, 114 (2002) (reversing application of continuing
26   violations doctrine). “Each incident of discrimination and
27   each retaliatory adverse employment decision constitutes a
28   separate actionable unlawful employment practice.” Id.
29   (internal quotation marks omitted).
30
31        Ramlal-Nankoe’s remaining, timely discrimination and
32   retaliation claims are analyzed under the familiar McDonnell
33   Douglas framework. McDonnell Douglas Corp. v. Green, 411
34   U.S. 792, 802-04 (1973). Assuming Ramlal-Nankoe established
35   a prima facie case, the College’s proffered reasons for its
36   decision to deny her tenure were not shown to be pretextual.
37   See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
38   2000) (“To get to the jury, it is not enough to disbelieve
39   the employer; the factfinder must also believe the
40   plaintiff’s explanation of intentional discrimination.”
41   (internal quotation marks and alterations omitted));
42   Bickerstaff v. Vassar Coll., 196 F.3d 435, 455-56 (2d Cir.
43   1999) (upholding grant of summary judgment to college
44   because tenure candidate did not satisfy posted criteria for
45   promotion); Zahorik, 729 F.2d at 93 (“[S]tatements of peer
46   judgments as to departmental needs, collegial relationships


                                  3
 1   and individual merit may not be disregarded absent evidence
 2   that they are a facade for discrimination.”).
 3
 4        Finally, the district court did not abuse its
 5   discretion in the award of attorney’s fees to the College.
 6   Barbour v. City of White Plains, 700 F.3d 631, 634 (2d Cir.
 7   2012) (per curiam). The district court cited Ramlal-
 8   Nankoe’s failure to object to the magistrate judge’s award
 9   of fees. In any event, the district court noted its
10   agreement, observing that Ramlal-Nankoe “offered no
11   substantial justification for the delay in making the
12   requested disclosure” and found no other circumstances that
13   would make such an award unjust.
14
15        For the foregoing reasons, and finding no merit in
16   Ramlal-Nankoe’s other arguments, we hereby AFFIRM the
17   judgment of the district court.
18
19                              FOR THE COURT:
20                              CATHERINE O’HAGAN WOLFE, CLERK
21




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