16-1428
Dilfanian 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 ASUMMARY 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
13th day of June, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         BARRINGTON D. PARKER,
         DEBRA ANN LIVINGSTON,
              Circuit Judges,

- - - - - - - - - - - - - - - - - - - - -X
RAMIN DILFANIAN,
         Plaintiff-Appellant,

             -v.-                                                  16-1428

NEW YORK CITY DEPARTMENT OF EDUCATION,
MAUREEN A. GOLDFARB,
         Defendants-Appellees.

- - - - - - - - - - - - - - - - - - - - -X

FOR APPELLANT:                                 ANTHONY OFODILE, Ofodile &
                                               Associates, P.C., Brooklyn,
                                               NY.




                                           1
FOR APPELLEES:                    ANTONELLA KARLIN (Devin
                                  Slack, on the brief), for
                                  Zachary W. Carter,
                                  Corporation Counsel of the
                                  City of New York, New York,
                                  NY.

     Appeal from a judgment of the United States District Court
for the Eastern District of New York (Vitaliano, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be VACATED AND
REMANDED.

     Ramin Dilfanian appeals from a judgment of the United
States District Court for the Eastern District of New York
(Vitaliano, J.) granting summary judgment to the appellees on
Dilfanian’s wrongful termination claim brought pursuant to the
Uniformed Services Employment & Reemployment Rights Act, 38
U.S.C. § 4301 et seq. (“USERRA”). We assume the parties’
familiarity with the underlying facts, the procedural history,
and the issues presented for review.

     Dilfanian was as an Assistant Principal for Supervision of
Mathematics at New Utrecht High School (“NUHS”) in Brooklyn,
New York from 2006 to 2010. During that period, he also served
as a Major in the United States Army Reserves. He was
terminated from NUHS at the conclusion of the 2009-10 academic
year at the recommendation of NUHS’s Principal, Maureen
Goldfarb. Dilfanian sues the New York City Department of
Education (“DOE”) and Goldfarb, alleging that his termination
violated USERRA because it was motivated by Golfarb’s
frustration at his potential military deployment.

     USERRA forbids an employer to deny “employment,
reemployment, retention in employment, promotion, or any
benefit of employment” based on a person’s “membership” in or
“obligation to perform service in a uniformed service,” 38
U.S.C. § 4311(a), and provides that liability is established
“if the person’s membership . . . is a motivating factor in the
employer’s action,” id. § 4311(c).



                              2
     In adjudicating a claim brought under USERRA, courts apply
the burden-shifting framework approved by the Supreme Court in
NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401 (1983), for
actions brought under the National Labor Relations Act. See
Gummo v. Vill. of Depew, 75 F.3d 98, 106 (2d Cir. 1996).

         Under that scheme, a claimant carries his burden of
         proving a prima facie case of discrimination by
         showing, by a preponderance of the evidence, that his
         protected status was ‘a substantial or motivating
         factor in the adverse [employment] action’; but the
         employer may nonetheless escape liability by showing,
         as an affirmative defense, that it would have made the
         same decision without regard to the employee’s
         protected status.

Id. (quoting NLRB, 462 U.S. at 401).

     The district court dismissed the complaint on summary
judgment, ruling that Dilfanian failed to make out a prima facie
case of discrimination, and that, in any case, his performance
issues demonstrate that he would have been terminated
regardless of his military service.

     We review de novo a district court’s grant of summary
judgment, see Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012),
and will affirm only if, construing the evidence in the light
most favorable to the nonmoving party, “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” Fed. R. Civ. P. 56(a). “There
is no genuine issue of material fact where the record taken as
a whole could not lead a rational trier of fact to find for the
non-moving party.” Durakovic v. Bldg. Serv. 32 BJ Pension
Fund, 609 F.3d 133, 137 (2d Cir. 2010) (internal quotation marks
and brackets omitted). In ruling on a motion for summary
judgment, “[t]he evidence of the nonmovant is to be believed,
and all justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

     1. Prima Facie Case. Dilfanian argues that a rational
juror could conclude that his termination was motivated, at
least in part, by Goldfarb’s frustration at his potential
military deployment. We agree.

                               3
      Goldfarb’s frustration is evidenced by her alleged
behavior on and after October 30, 2009, when Dilfanian received
orders regarding a possible one-year deployment to Afghanistan.
First, Dilfanian testified that when he showed Goldfarb his
deployment letter on October 30, she threw it on her desk and
stated, “[Y]ou’re going to leave a broken department behind,”
and “[H]ow can you do that to me? I am stuck with cleaning up
. . . the mess.” App’x at 323. A rational juror could construe
this reaction as Goldfarb personalizing the deployment as
something Dilfanian was doing to her rather than a legal
obligation imposed on them both.

     Second, while Dilfanian was away from the school the
following week (November 2-6) attending a pre-deployment
planning session, Goldfarb filed a disciplinary letter
regarding Dilfanian’s inadvertent absence from a meeting seven
weeks earlier. The letter warned Dilfanian that “[t]his
incident may lead to further disciplinary action, including an
unsatisfactory rating and charges that can lead to your
termination.” App’x at 272. According to Dilfanian, Goldfarb
had told him and his union representative in September that she
would not issue a disciplinary letter unless he missed another
meeting, which he did not. Goldfarb does not explain why she
filed the disciplinary letter when Dilfanian was away on
pre-deployment, seven weeks after the missed meeting. She
simply cites DOE regulations requiring that disciplinary
letters be filed within ninety days of the underlying incident.

     Third, during Dilfanian’s first three years as assistant
principal at NUHS, he received satisfactory ratings and (the
record indicates) no disciplinary letters. Yet in the eight
months after notifying Goldfarb of his planned deployment, he
received an unsatisfactory rating and three disciplinary
letters, and was subsequently terminated. Moreover, Goldfarb
conceded that during her six years at NUHS, Dilfanian was the
only assistant principal whom she rated (post-deployment
notice) as unsatisfactory; and aside from a Coast Guard veteran
who left within a few months of Goldfarb’s arrival, Dilfanian
was apparently the only service member on staff.




                              4
     Fourth, Dilfanian testified that after he received the
deployment order, Goldfarb stopped being friendly and ceased
informal communications with him.

     Fifth, at a NUHS “cabinet” meeting of assistant principals
shortly after Dilfanian received the deployment order, Goldfarb
announced that military recruiters (who had previously been
permitted to visit classes) would no longer be allowed in the
school except on career day.1

     Dilfanian testified that during two other cabinet meetings
following the deployment letter, Goldfarb signaled a desire to
get rid of him. At one, Goldfarb announced that she was
“cleaning house,” stared and pointed a wand at Dilfanian, and
said to him (and only him), “poof, be gone.” App’x at 121. At
another, the school’s math coach (who was not an assistant
principal and thus not a cabinet member) was invited to stay
and eat after giving a presentation. When the math coach
hesitated, Goldfarb looked at Dilfanian, then turned back to
the math coach and said, “if you want to join us at the cabinet,
you need to eat like us.” App’x at 115. The only way the math
coach could have joined the cabinet was as Dilfanian’s
replacement in the position of Assistant Principal of
Mathematics. When Dilfanian was terminated, that is just what
happened.

     Finally, Dilfanian requested Goldfarb’s endorsement for a
training program that would qualify him to become a principal.
According to Dilfanian, Goldfarb failed to sign the necessary
paperwork by the deadline (which was after he received the
deployment order), and, as a result, he missed the opportunity.

     Although it is a close call, we believe that this evidence,
when viewed in the light most favorable to Dilfanian, is
sufficient to preclude summary judgment. See Schwapp v. Town
of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (“Because direct
evidence of an employer’s discriminatory intent will rarely be
found, affidavits and depositions must be carefully scrutinized
for circumstantial proof which, if believed, would show
1
  This policy was in line with existing DOE regulations (which
prohibited recruiters from being given unfettered access to
students), but it was a break with school practice.
                               5
discrimination.” (internal quotation marks omitted)); Gummo,
75 F.3d at 107 (“If, as to the issue on which summary judgment
is sought, there is any evidence in the record from which a
reasonable inference could be drawn in favor of the opposing
party, summary judgment is improper.”); see also Anderson, 477
U.S. at 255 (“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge[.]”).

     Appellees contend that any inference of discrimination
that can be drawn from Goldfarb’s behavior is negated by the
fact that Dilfanian did not end up deploying. The thrust of
this argument is that the deployment order ceased to be a factor
once Dilfanian managed to avoid it. However, a juror could
rationally conclude that the deployment order caused Goldfarb
to consider the prospect of losing an assistant principal
suddenly and for a prolonged period of time. (Unlike typical
Army Reserve units, Dilfanian’s special operations unit could
apparently be deployed at any time with three days’ notice.)
In other words, one could find that the deployment order made
real for Goldfarb the risk of having to operate without one of
her critical staff members on a moment’s notice.2


2
  Because Goldfarb heavily influenced the decision to terminate
Dilfanian, the fact that individuals with no alleged
anti-military bias reviewed and authorized the termination does
not preclude his USERRA claim (and appellees do not contend
otherwise). See Staub v. Proctor Hosp., 562 U.S. 411, 422
(2011) (holding that “if a supervisor performs an act motivated
by antimilitary animus that is intended by the supervisor to
cause an adverse employment action, and if that act is a
proximate cause of the ultimate employment action, then the
employer is liable under USERRA” (emphasis omitted));
Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999)
(“We recognize that the impermissible bias of a single
individual at any stage . . . may taint the ultimate employment
decision in violation of Title VII. This is true even absent
evidence of illegitimate bias on the part of the ultimate
decision maker, so long as the individual shown to have the
impermissible bias played a meaningful role in the
[decisionmaking] process.” (internal citation omitted)).
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     2. Affirmative Defense. Appellees argue that
Dilfanian’s performance problems during his final year at NUHS
were so significant that he would have been terminated
regardless of Goldfarb’s motives. They cite a number of
incidents to support this contention.

     First, Dilfanian forgot to attend a meeting in Goldfarb’s
office. He testified that, at the time, he was in his office
speaking with the school’s math coach.

     Second, while inspecting test materials in preparation for
an Advanced Placement English Literature exam, Dilfanian (and
another testing coordinator) failed to notice that the state
had erroneously sent English Language exam booklets. The test
had to be rescheduled, and one student missed it.

     Third, Goldfarb alleged that Dilfanian provided inadequate
guidance to teachers on a number of occasions, and that students
were performing below expectations. (Dilfanian refuted these
allegations in a detailed and thoughtful response.)

     Finally, Dilfanian was absent from school on Friday, May
14, a day when he was supposed to perform an important role in
a professional development session. On Monday of that week,
he received military orders to report to Fort Dix, New Jersey
on the Thursday and to remain through the weekend. Rather than
miss school, he arranged with his superior officer to arrive
at Fort Dix after the school day on Thursday and be excused from
duty altogether on Friday. Because he had worked out similar
arrangements in the past, he did not warn Goldfarb. However,
on Thursday night, a one-star general requested that Dilfanian
personally give a briefing the following day. Accordingly,
Dilfanian notified the school early Friday morning that he would
be out (which was the normal procedure for unexpected teacher
absences). At that point, however, it was too late to
reschedule the professional development session, which had to
be reorganized in light of Dilfanian’s absence.

     These alleged performance problems were not so egregious
that a rational juror must conclude that his termination would
have occurred regardless of his military service.



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     Accordingly, we hereby VACATE the judgment of the district
court and REMAND for further proceedings.3

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




3
  We decline to reach whether Goldfarb may be held individually
liable under USERRA. The district court should do so in the
first instance. See Farricielli v. Holbrook, 215 F.3d 241, 246
(2d Cir. 2000) (per curiam) (observing that “[i]t is our settled
practice to allow the district court to address arguments in
the first instance”).
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