16-3633-cv
Patel v. City of New York et al.

                                   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
27th day of October, two thousand seventeen.

Present:    JON O. NEWMAN,
            GUIDO CALABRESI,
            ROSEMARY S. POOLER,
                        Circuit Judges.
____________________________________________________

PIYUSH PATEL,

                  Plaintiff-Appellant,
                                                                       16-3633-cv
                  v.

THE CITY OF NEW YORK, THOMAS DEPIPPO, JOSEPH
A. SANTINO, ANNA COLARES, JOHN AND JANE DOE,
said names being fictitious, the persons intended being those
who aided and abetted the unlawful conduct of the named
defendants,

            Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:             Samuel O. Maduegbuna, Maduegbuna Cooper LLP, New York,
                                     NY.

Appearing for Appellee:              Diana Lawless, Assistant Corporation Counsel (Devin Slack,
                                     Susan P. Greenberg, on the brief), for Zachary W. Carter,
                                     Corporation Counsel of the City of New York, New York, NY.
 1          Appeal from the United States District Court for the Southern District of New York
 2   (Preska and Cedarbaum, JJ.).
 3
 4        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
 6
 7           Plaintiff-appellant Piyush Patel appeals from two orders and a judgment entered by the
 8   United States District Court for the Southern District of New York (Preska and Cedarbaum, JJ.)
 9   granting defendants’ motion for summary judgment with respect to his claims of employment
10   discrimination and retaliation in violation of 42 U.S.C. §§ 1981 and 1983, the New York City
11   Human Rights Law (“City HRL”), and the New York State Human Rights Law. See Patel v. City
12   of New York, No. 12 CIV. 6312, 2013 WL 2284883 (S.D.N.Y. May 17, 2013); Patel v. City of
13   New York, No. 12-CV-6312, 2016 WL 6820943 (S.D.N.Y. Sept. 29, 2016).
14
15           Patel claims that defendants failed to promote him because of his race and national
16   origin, and that they also retaliated against him for exercising his rights under provisions of anti-
17   discrimination law. We assume the parties’ familiarity with the underlying facts, the procedural
18   history, and the issues presented for review.
19
20      1. Failure-to-Promote Claims
21
22           “[C]laims for race and national origin discrimination under Sections 1981 and 1983 are
23   analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
24   411 U.S. 792 (1973).” Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). Under the
25   McDonnell Douglas framework, “a plaintiff must first establish a prima facie case of
26   discrimination.” Id. “Once a plaintiff meets th[e] initial burden, the burden then shifts to the
27   defendant to offer a legitimate nondiscriminatory reason” for the alleged discriminatory action.
28   Id. at 492. “If defendant does so, the burden returns to the plaintiff to show that the real reason
29   for [the alleged discriminatory action] was…race and national origin.” Id.
30
31         In the failure-to-promote context, a plaintiff ordinarily must demonstrate the following
32   elements to make out a prima facie case:
33
34          (1) she is a member of a protected class; (2) she applied and was qualified for a
35          job for which the employer was seeking applicants; (3) she was rejected for the
36          position; and (4) the position remained open and the employer continued to seek
37          applicants having the plaintiff’s qualifications.
38
39   Estate of Hamilton v. City of New York, 627 F.3d 50, 55 (2d Cir. 2010). “Of course, the fourth
40   element is also established if the employer fills the position with a person outside the protected
41   class who was similarly or less qualified than the plaintiff.” Yu v. New York City Hous. Dev.
42   Corp., 494 F. App’x 122, 125 n.4 (2d Cir. 2012) (internal quotation marks omitted).
43
44          In this appeal, Patel challenges his lack of promotion to three positions. Two were
45   promotions received by Anna Colares, a Caucasian woman. Colares was promoted in March of
46   2009 to Executive Assistant/Project Manager to the Deputy Commissioner of the City’s General


                                                       2
 1   Support Services. Subsequently, Colares was promoted to Executive Director of Space &
 2   Design. The third was Antonio Cinquepalmi’s promotion from Construction Project Manager II
 3   to Construction Project Manager III, a position with the working title of “Chief Construction
 4   Project Manager.”
 5
 6           As to the second promotion, Patel presents no evidence demonstrating that he applied for
 7   the position of Executive Director of Space & Design, or that the City failed to post a notice
 8   about the availability of the position, which would relieve him of the obligation to apply. See
 9   Mauro v. S. New England Telecommunications, Inc., 208 F.3d 384, 387 (2d Cir. 2000). Thus,
10   Patel fails to make a prima facie claim that the City discriminated in promoting Colares to the
11   position instead of him.
12
13         As to the first and third promotions, even if we were to find that Patel made a prima facie
14   showing, he fails to rebut the City’s legitimate, nondiscriminatory reason for hiring Colares and
15   Cinquepalmi instead of him, chiefly because he has not demonstrated that his qualifications were
16   comparable to those of the other two candidates.
17
18           Regarding Colares’s promotion to Executive Assistant/Project Manager, Patel’s argument
19   that he is more qualified than Colares rests on the claim that he was more experienced. We have
20   held, however, that greater experience cannot alone establish that a candidate’s qualifications are
21   so superior to another’s that the employer’s hiring decision may be found to have been
22   discriminatory. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104 (2d Cir. 2001).
23   And Patel fails to provide other evidence that could create an inference of discrimination even if
24   it were true that his qualifications equaled Colares’s.
25
26           Second, we are not persuaded that Patel was qualified for Cinquepalmi’s position. City
27   paperwork stated that the person entering the position would be “responsible for assisting the
28   Director in overseeing one or more major . . . construction/renovation projects . . . that address
29   health and safety issues.” App’x at 1024. It further mentioned one of the position’s roles as
30   “evaluating reports of hazardous conditions.” App’x at 1024. Significantly, the paperwork noted
31   Cinquepalmi’s Master of Science degree in Environmental and Occupational Health Science, and
32   his Asbestos licenses. By contrast, Patel has not suggested that he has expertise with hazardous
33   substances or health and safety issues. Nor has he demonstrated that the City’s materials
34   describing the position were inaccurate.
35
36      2. Retaliation Claims
37
38          Patel claims that the City retaliated against him due to an email he sent in 2009, and
39   because of his filing of this lawsuit.
40
41            Retaliation claims are subject to the McDonnell Douglas scheme as well. Ya-Chen Chen
42   v. City Univ. of New York, 805 F.3d 59, 70 (2d Cir. 2015). “To make out a prima facie case of
43   retaliation, an employee must show that the employee was engaged in protected activity; that the
44   employer was aware of that activity; that the employee suffered adverse employment decisions;
45   and that there was a causal connection between the protected activity and the adverse
46   employment action.” Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).


                                                     3
 1   “Protected activity” is an assertion of rights covered by the provision of law under which the
 2   plaintiff is suing. See Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998) (“[T]o
 3   be actionable under § 1981, the retaliation must have been in response to the claimant’s assertion
 4   of rights that were protected by § 1981. An act of retaliation for engaging in activity protected by
 5   Title VII does not give rise to a claim for retaliation that is cognizable under § 1981 unless that
 6   activity was also protected by § 1981.” (citations omitted)); see also Ya-Chen Chen, 805 F.3d at
 7   70 (Title VII).
 8
 9           Patel’s 2009 email did not constitute protected activity because it does not discuss
10   discrimination on the basis of race or national origin. The email clearly suggests that any
11   negative action was based on animus toward Patel in particular, not toward a racial or national
12   group. The email states, for example, that “I am the only person left out with adverse personal
13   action against me.” App’x at 958. Moreover, the email cites “civil service law section seventy
14   five,” which protects employees from retaliation for exposing government legal violations, not
15   from discrimination based on race or national origin. See N.Y. Civ. Serv. Law § 75-b. The only
16   way that the email arguably relates to Patel’s claim lies in his assertion that the City’s treatment
17   of him “is clearly discrimination and or retaliation with me.” App’x at 958. However, the words
18   “discrimination and or retaliation” need not refer to animus based on race or national origin, and
19   do not appear to do so here when viewed in the context of the full email.
20
21           Patel’s retaliation claims based on his filing of this lawsuit fare no better. Patel contends
22   that the City retaliated because (1) his supervisors evaluated his performance as “good” when in
23   past years it was “very good,” even though, upon his protestation, he was rated “very good,” and
24   (2) his supervisor placed a disciplinary memorandum in his file in 2014. An “adverse action”
25   sufficient to support a retaliation claim is one that is “harmful to the point that [it] could well
26   dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington
27   N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S. Ct. 2405, 2409, 165 L. Ed. 2d 345
28   (2006). We do not see how the supervisors’ ultimate assignment of the rating Patel requested was
29   “harmful” in this way. And the disciplinary memorandum does not demonstrate retaliation, both
30   because Patel admitted that others were disciplined for similar actions, and because it was remote
31   in time from relevant events in this suit.
32
33           Finally, we do not evaluate Patel’s arguments pertaining to the City HRL, because as the
34   City argues, and Patel does not dispute, he failed to raise these arguments in a sufficient manner
35   before the district court. In civil cases, “[i]t is a well-established general rule that an appellate
36   court will not consider an issue raised for the first time on appeal,” with exceptions inapplicable
37   here. Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006).
38
39          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
40
41                                                  FOR THE COURT:
42                                                  CATHERINE O’HAGAN WOLFE, CLERK
43




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