11-4480-cv
Simmons v. Akin Gump Strauss Hauer & Feld, LLP

                  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 24th day of January, two thousand thirteen.

PRESENT:    ROBERT D. SACK,
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                      Circuit Judges.

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TAMEKA SIMMONS,
                        Plaintiff-Appellant,

                        -v.-                           11-4480-cv

AKIN GUMP STRAUSS HAUER & FELD, LLP,
                    Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT:             DEBRA L. RASKIN (Liane Tai Rice, on
                                     the brief), Vladeck, Waldman, Elias
                                     & Engelhard, P.C., New York, N.Y.

FOR DEFENDANT-APPELLEE:              CHRISTINE NICOLAIDES KEARNS,
                                     Pillsbury Winthrop Shaw Pittman
                                     LLP, Washington, D.C.
          Appeal from the United States District Court for the

Southern District of New York (Rakoff, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Tameka Simmons appeals from the

district court's judgment entered October 11, 2011, implementing

its memorandum order entered October 5, 2011, reaffirming its

order of May 30, 2011 granting summary judgment for defendant-

appellee Akin Gump Strauss Hauer & Feld, LLP (the "Firm").

Simmons challenges the district court's dismissal of her racial

discrimination claims under Section 1981 of the Civil Rights Act

of 1866, 42 U.S.C. § 1981; Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq.; the New York State Human Rights

Law ("NYSHRL"), N.Y. Exec. L. § 296; and the New York City Human

Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq.

Simmons also challenges the district court's dismissal of her

claim under the Family and Medical Leave Act ("FMLA"), 29 U.S.C.

§ 2601 et seq.   We assume the parties' familiarity with the
underlying facts, the procedural history of the case, and the

issues presented for review.

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

judgment, construing the evidence in the light most favorable to

the non-moving party and drawing all inferences and resolving all

ambiguities in her favor.   Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 101 (2d Cir. 2010).



                                -2-
          All of Simmons's claims, save her claim under the

NYCHRL, are analyzed under the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).     See Ruiz

v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (Section

1981 and Title VII); Potenza v. City of New York, 365 F.3d 165,

167-68 (2d Cir. 2004) (per curiam) (FMLA); Cruz v. Coach Stores,

Inc., 202 F.3d 560, 565 & n.1 (2d Cir. 2000) (NYSHRL).     The

NYCHRL claim is analyzed separately below.   See Bennett v. Health

Mgmt. Sys. Inc., 936 N.Y.S.2d 112, 116 (1st Dep't 2011).
1.   Racial Discrimination -- Section 1981, Title VII, and NYSHRL

          Under the McDonnell Douglas framework, Simmons was
required to make out a prima facie case of discrimination by

showing: (1) membership in a protected class, (2) satisfactory

job performance, (3) adverse employment action, and (4)

circumstances giving rise to an inference of discrimination on

the basis of her membership in that class.   Farias v.

Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001)

(citation omitted).

          Even assuming Simmons satisfied the first three prongs,

her claims fail because the circumstances here do not give rise

to a reasonable inference of discrimination due to her race.     The

undisputed facts below showed that the Firm -- like many other

law firms throughout the country -- was experiencing significant

economic difficulties in 2009.   The bankruptcy of Lehman Brothers
in 2008 decreased the revenue and average billable hours of the

New York Investment Funds Practice Group ("IFPG") for the


                                 -3-
following year by 26% and 14%, respectively.     In October 2008,

the IFPG discharged an associate in the Los Angeles office for

economic reasons.    In March 2009, the Firm laid off 47 of its

approximately 760 attorneys in its major U.S. offices, including

7 in the IFPG -- 5 white men, 1 white woman, and 1 Asian-American

woman.    In April 2009, the Firm announced that it was deferring

the start dates of incoming associates to late 2009 and early

2010.    In June 2009, an associate in the Dallas office of the

IFPG was converted from a full-time associate to an hourly
employee, in which capacity he earned approximately $600 in 2009.

Finally, in September 2009, Simmons was told that her employment

would terminate by year-end 2009.      Given these undisputed facts,

a reasonable jury could only reject Simmons's argument that the

Firm's decision to terminate her employment was based at least in

part on race.    Indeed, the undisputed facts show that, at least

in one instance, the Firm treated her more favorably because of

her race, as it delayed discharging her (by removing her from the

March 2009 termination list) at least in part in the interest of

diversity.

            Simmons's argument that the IFPG's business

circumstances had improved by September 2009 is unavailing.     She

points to comments made by Prakash Mehta, the co-head of the

IFPG, that New York was the "hotspot" and "where the business

was."    She takes those comments clearly out of context, however,

as they were made by Mehta in an effort to motivate the IFPG



                                 -4-
lawyers and explain that the group's leaders were working to

address the business challenges they faced.

            Even assuming that Simmons met the relatively light

burden of establishing a prima facie case of discrimination, she

did not present evidence from which a fact-finder could

reasonably conclude that the non-discriminatory reason given by

the Firm for her discharge was pretextual.     While Simmons

proffered some evidence, e.g., the low percentage of African-

American associates in the New York IFPG, she 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 Firm] 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).    No reasonable jury could have found, on this record,

that Simmons was selected for the reduction-in-force at least in

part because of her race.
2.   Racial Discrimination -- NYCHRL

            Simmons's claim under the NYCHRL requires an

independent analysis, as the New York statute, amended by the

Local Civil Rights Restoration Act of 2005, was intended to

provide a remedy reaching beyond those provided by the

counterpart federal civil rights laws.     See Bennett, 936 N.Y.S.2d
at 116.   To prevail on its motion for summary judgment, the Firm

was required to meet its burden of showing that, based on the


                                  -5-
evidence before the court and drawing all reasonable inferences

in Simmons's favor, no jury could find that the Firm treated

Simmons "less well" than other employees at least in part because

of her race.   Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39

(1st Dep't 2009); see also Melman v. Montefiore Med. Ctr., 946

N.Y.S.2d 27, 30, 40-41 (1st Dep't 2012) (affirming summary

judgment for the employer where no triable issues existed as to

whether the employer's action was "more likely than not based in

whole or in part on discrimination" (citations omitted)).

          Here, the district court erred to the extent that it

failed to give independent liberal construction to Simmons's

NYCHRL claim, but analyzed it under the same standard as her

claims under federal and state law.     Mem. Order at 14 n.2,

Simmons v. Akin Gump Strauss Hauer & Field, LLP, No. 10 Civ.
8990, 2011 WL 4634155, at *6 n.2 (S.D.N.Y. Oct. 6, 2011); see

Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723

(2d Cir. 2010) (noting the different standard to be applied to

NYCHRL claims); Loeffler v. Staten Island Univ. Hosp., 582 F.3d
268, 278 (2d Cir. 2009) (same).

          Even under the independent liberal construction,

however, we affirm the district court's grant of summary judgment

in the Firm's favor.   Based on the evidence discussed above,

Simmons failed to raise a triable issue as to whether she was

treated less well than other employees based in whole or in part

on discrimination, and not because of the non-discriminatory

reasons proffered by the Firm.

                                  -6-
3.   FMLA1

             To establish a prima facie case of FMLA retaliation,

Simmons was required to show that (1) she exercised rights

protected under the FMLA, (2) she was qualified for her position,

(3) she suffered an adverse employment action, (4) the adverse

employment action occurred under circumstances giving rise to an

inference of retaliatory intent.     See Potenza, 365 F.3d at 168.

             Even assuming Simmons can make out a prima facie case

of retaliation based on comments from several partners shortly

after her return from FMLA leave that she had spent too much time

out of the office to develop her skills and client relationships,

she did not set forth evidence from which a fact-finder could

reasonably conclude that the Firm's non-discriminatory economic

reason for terminating her employment was pretextual.     As already

noted, she was removed from a termination list in Marsh 2009,

just six months after her return from FMLA leave, and not

discharged until year-end 2009, more than one year after her

return from leave.




     1
          Although Simmons refers to "interference" with her FMLA
rights in her amended complaint and briefs, the substance of her
arguments therein constitutes a claim for retaliation under the
FMLA, and thus, we review her claim as one of retaliation. See
Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175-76 (2d Cir.
2006).

                                  -7-
          We have considered Simmons's remaining arguments and

conclude they are without merit.   Accordingly, we hereby AFFIRM

the judgment of the district court.



                         FOR THE COURT:
                         Catherine O'Hagan Wolfe, Clerk




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