14-842
Velazco v. Columbus Citizens

                        UNITED STATES COURT OF APPEALS

                                FOR THE SECOND CIRCUIT

                                    _______________

                                   August Term, 2014

          (Submitted: January 14, 2015            Decided: February 13, 2015)

                                    Docket No. 14-842

                                    _______________

                                     HUGO VELAZCO,

                                                Plaintiff – Appellant,

                                         —v.—

               COLUMBUS CITIZENS FOUNDATION, JOHN BODEN, an individual,

                                                Defendants – Appellees,

                                    _______________




B e f o r e:

                 KATZMANN, Chief Judge, KEARSE and RAGGI, Circuit Judges.


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                                 _______________

        Appeal from a district court’s judgment (Daniels, J.), granting summary
judgment in defendants’ favor on plaintiff’s claims for age discrimination under,
inter alia, the New York City Human Rights Law (‚NYCHRL‛), N.Y.C. Admin.
Code § 8-101 et seq. We conclude that the district court failed to separately and
independently analyze plaintiff’s NYCHRL claim. We therefore VACATE that
portion of the district court’s judgment and REMAND for further proceedings
consistent with this Opinion.
                                   _______________

            Michael J. Borrelli, Alexander T. Coleman, Jeffrey R. Maguire, Borrelli
                 & Associates, P.L.L.C., Great Neck, New York, for Plaintiff-
                 Appellant.

            Michael A. Miranda, Miranda Sambursky Sloane Sklarin Verveniotis
                 LLP, Mineola, New York, for Defendants-Appellees.

                                 _______________

PER CURIAM:

      Plaintiff-Appellant Hugo Velazco appeals from an award of summary

judgment entered in the United States District Court for the Southern District of

New York (Daniels, J.), on February 24, 2014, in defendants’ favor on Velazco’s

claims of age discrimination under the Age Discrimination in Employment Act

(‚ADEA‛), 29 U.S.C. §§ 621–634, and the New York City Human Rights Law

(‚NYCHRL‛), N.Y.C. Admin. Code § 8-101 et seq. We affirm the ADEA portion of



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the judgment in a separate summary order. We write here to reiterate that district

courts who exercise pendent jurisdiction over NYCHRL claims are required by

the Local Civil Rights Restoration Act of 2005 (‚Restoration Act‛), N.Y.C. Local L.

No. 85, to analyze those claims under a different standard from that applicable to

parallel federal and state law claims. Because the district court did not analyze

Velazco’s NYCHRL claim separately and independently, we vacate the NYCHRL

portion of the judgment and remand to the district court for further proceedings

consistent with this Opinion.

                                     DISCUSSION

       We review de novo a district court’s grant of summary judgment, drawing

all reasonable factual inferences in the non-moving party’s favor, here, Velazco.

See, e.g., Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).

       We have previously explained that for many years, the NYCHRL was

construed ‚to be coextensive with its federal and state counterparts.‛ Mihalik v.

Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). But in 2005,

the New York City Council passed the Restoration Act, which amended the

NYCHRL. Id. at 109. Specifically, the Restoration Act created ‚two new rules of



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construction.‛ See id. First, it explicitly created a one-way ratchet, by which

‚*i]nterpretations of New York state or federal statutes with similar wording may

be used to aid in interpret[ing+‛ the NYCHRL, insofar as ‚similarly worded

provisions of federal and state civil rights laws [would constitute] a floor below

which the [NYCHRL] cannot fall.‚ Restoration Act § 1; see Loeffler v. Staten Island

Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009). Second, it amended the NYCHRL to

require a liberal construction of its amendments ‚for the accomplishment of the

*NYCHRL’s+ uniquely broad and remedial purposes . . . , regardless of whether

federal or New York State civil and human rights laws, including those laws with

provisions comparably-worded to provisions of [the NYCHRL], have been so

construed.‛ Restoration Act § 7 (amending N.Y.C. Admin. Code § 8–130).

      Thus, ‚*i+n amending the NYCHRL, the City Council expressed . . . that the

NYCHRL had been ‘construed too narrowly’ and therefore ‘underscore*d+ that

the provisions of [the NYCHRL] are to be construed independently from similar

or identical provisions of New York state or federal statutes.’‛ Mihalik, 715 F.3d at

109 (second alteration in the original) (quoting Restoration Act § 1); see also Albunio

v. City of N.Y., 16 N.Y.3d 472, 477 (2011) (recognizing that the Restoration Act



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requires courts to construe the NYCHRL ‚broadly in favor of discrimination

plaintiffs‛); Williams v. N.Y.C. Hous. Auth., 61 A.D. 3d 62, 67 (N.Y. App. Div. 2009)

(‚[T]he Restoration Act notified courts that . . . all provisions of the [NYCHRL]

required independent construction to accomplish the law’s uniquely broad

purposes . . . .‛) (emphasis in the original). We have therefore held that

‚[p]ursuant to these revisions, courts must analyze NYCHRL claims separately

and independently from any federal and state law claims.‛ Mihalik, 715 F.3d at

109. Indeed, ‚even if the challenged conduct is not actionable under federal and

state law, federal courts must consider separately whether it is actionable under

the broader New York City standards.‛ Mihalik, 715 F.3d at 109.

      Of course, a federal court need not undertake such a review of a NYCHRL

claim if, after disposition of the parallel federal claim, it declines to exercise

pendent jurisdiction. But the district court did not choose this route, instead

ruling that plaintiff’s NYCHRL claim failed as a matter of law. Such a decision

could only be made by undertaking the independent analysis required by the

Restoration Act, which the district court failed to do here.




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      In urging otherwise, defendants maintain that the district court effectively

applied the NYCHRL standard when, in granting summary judgment, it found

that the plaintiff’s age was not a motivating factor in the decision to terminate

him. We do not think the district court spoke with sufficient clarity, however, as

to whether the evidence was insufficient to support any causal link between age

bias and plaintiff’s firing, as required by the NYCHRL, see Bennett v. Health Mgmt.

Sys., Inc., 936 N.Y.S.2d 112, 120 (N.Y. App. Div. 2011) (‚It is not uncommon for

covered entities to have multiple or mixed motives for their action, and the

*NYCHRL+ proscribes such ‘partial’ discrimination . . . .‛), or whether the

evidence was simply insufficient to support the but-for causation required by the

ADEA, see Gross v. FBL Fin. Servs. , Inc., 557 U.S. 167, 177–78 (2009). In sum,

because we cannot confidently conclude that the district court analyzed plaintiff’s

NYCHRL claim under the standard applicable thereto, we must vacate the

portion of the district court’s judgment related to the plaintiff’s NYCHRL claim.

                                  CONCLUSION

      Accordingly, the district court’s judgment is VACATED in part and

REMANDED for further proceedings consistent with this Opinion.



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