         12-2155-cv
         Dao v. Oppenheimer Funds, Inc.

                                 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 22nd day of March, two thousand thirteen.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                RICHARD C. WESLEY,
 8                CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10
11
12
13       PETER DAO,
14
15                                     Plaintiff-Appellant,
16
17                      v.                                                          12-2155
18
19       OPPENHEIMER FUNDS, INC.,
20
21                                      Defendant-Appellee.
22
23
24       FOR APPELLANT:                KEVIN MINTZER, Law Office of Kevin
25                                     Mintzer, P.C., New York, NY.
26
27       FOR APPELLEE:                 BARRY ASEN, Epstein Becker & Green, P.C.,
28                                     New York, NY (Melissa Mazer,
29                                     OppenheimerFunds, Inc., General Counsel’s
30                                     Office, New York, NY, on the brief).
31
32
33
1         Appeal from the United States District Court for the
2    Southern District of New York (Forrest, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Southern District of New York is AFFIRMED.

7        Plaintiff-Appellant Peter Dao (“Dao”) appeals from a

8    May 2, 2012 Memorandum and Order from the United States

9    District Court for the Southern District of New York

10   (Forrest, J.) granting summary judgment to Defendant-

11   Appellee Oppenheimer Funds, Inc. (“Oppenheimer”).    Dao

12   argues that issues of fact exist regarding his

13   discrimination and retaliation claims brought pursuant to 42

14   U.S.C. § 1981 and the New York City Human Rights Law

15   (“NYCHRL”).   We assume the parties’ familiarity with the

16   underlying facts, the procedural history, and the issues

17   presented for review.

18       We review a district court’s grant of summary judgment

19   de novo.   Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 168

20   (2d Cir. 2006).   Dao’s Section 1981 claims are analyzed

21   under the burden-shifting framework laid out in McDonnell

22   Douglas Corp. v. Green, 411 U.S. 792 (1973).     Holcomb v.

23   Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (discrimination

24   claims); Fincher v. Depository Trust and Clearing Corp., 604

                                   2
1    F.3d 712, 720 (2d Cir. 2010) (retaliation claims).

2    Discrimination claims brought under the NYCHRL are also

3    analyzed using the McDonnell Douglas framework, but the

4    NYCHRL is to be construed “broadly in favor of

5    discrimination plaintiffs, to the extent that such a

6    construction is reasonably possible.”1    Melman v. Montefiore

7    Med. Ctr., 98 A.D.3d 107, 112 (1st Dep’t 2012) (quoting

8    Albunio v. City of New York, 947 N.E.2d 135, 137 (2011)).

9    For either a discrimination or retaliation claim to survive

10   summary judgment, a plaintiff must state the relevant prima

11   facie claim and then offer evidence from which a reasonable

12   juror could conclude that the defendant’s legitimate

13   business reasons for its actions were pretext for illegal

14   motivations.    Holcomb, 521 F.3d at 138; Fincher, 604 F.3d at

15   720.

16          For reasons given in its opinion, we agree with the

17   district court that Dao failed to make out a prima facie

18   case of either discrimination or retaliation under Section

19   1981 or the NYCHRL.    Additionally, the record does not

            1
            We note that the First Department in Melman also
     considered the plaintiff’s claim under the “mixed-motive”
     framework discussed in Bennett v. Health Management Systems,
     Inc., 92 A.D.3d 29, 45 (2011). Melman, 98 A.D.3d at 112-13. As
     in Melman, however, we are convinced that the defendant here is
     entitled to summary judgment under either approach. Id. at 113.

                                    3
1    support Dao’s argument that Oppenheimer’s legitimate

2    business reasons for its adverse employment action(s)

3    against Dao were pretext for unlawful discrimination or were

4    taken in retaliation for protected activity.

 5        Accordingly, the judgment of the district court is
 6   hereby AFFIRMED.
 7
 8                              FOR THE COURT:
 9                              Catherine O’Hagan Wolfe, Clerk
10
11




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