15-1293-cv
Wright v. City of Ithaca

                                 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 7th day of March, two thousand sixteen.

PRESENT:             JOSÉ A. CABRANES,
                     BARRINGTON D. PARKER,
                     GERARD E. LYNCH,
                                  Circuit Judges.


B. DOUGLAS WRIGHT AND MELISSA WRIGHT,

                            Plaintiffs-Appellants,                 15-1293-cv

                            v.

CITY OF ITHACA, NEW YORK, CAROLYN PETERSON,
SCHELLEY MICHELL-NUNN, EDWARD VALLELY,
LAUREN SIGNER,

                            Defendants-Appellees.


FOR PLAINTIFFS-APPELLANTS:                               A.J. Bosman, Bosman Law Firm, L.L.C.,
                                                         Rome, NY.

FOR DEFENDANTS-APPELLEES:                                Paul E. Wagner, Anne-Marie Mizel,
                                                         Stokes Wagner, PC, LLC, Ithaca, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Gary L. Sharpe, Judge).


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     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Plaintiffs-appellants B. Douglas Wright (“Wright”) and Melissa Wright (together, “the
Wrights”) appeal from a March 20, 2015 judgment granting defendants-appellees’ motion for
summary judgment, which followed a March 15, 2012 order granting in part defendants-appellees’
motion to dismiss. The Wrights also appeal a discovery order of January 10, 2014 (Therese Wiley
Dancks, Magistrate Judge). We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.

        Wright, who is white, formerly worked as a police sergeant in the City of Ithaca, New York
(“Ithaca”), which is a defendant-appellee. He alleges that the Ithaca police department twice denied
him promotions to lieutenant—first in 2007, and again in 2009—because of his race, and that the
police department instead promoted less-qualified non-white candidates. On appeal, the Wrights
argue that the District Court erred (1) in concluding that several of Wright’s claims—under 42
U.S.C. § 1983; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq.;
and Chapter 215 of the City of Ithaca Municipal Code (“IMC”)—were time-barred; (2) in
determining that Wright had failed to produce evidence sufficient to survive summary judgment on
his 42 U.S.C. § 1981 claim; (3) in denying Wright discovery regarding Ithaca’s employment policies;
and (4) in determining that Melissa Wright’s claim for loss of consortium failed as a matter of law.

        “We review a grant of summary judgment de novo and may affirm on any basis that finds
support in the record.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citation omitted). We
“resolve all ambiguities and draw all reasonable inferences against the moving party.” Id. Summary
judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).

         We affirm the District Court’s grant of summary judgment because each of Wright’s claims
is time-barred. Actions brought in New York for employment discrimination under § 1983 or the
NYSHRL are governed by a three-year statute of limitations, “running from the time a plaintiff
knows or has reason to know of the injury giving rise to the claim.” Milan v. Wertheimer, 808 F.3d
961, 963 (2d Cir. 2015) (internal quotation marks omitted) (discussing § 1983); see Lore v. City of
Syracuse, 670 F.3d 127, 169 (2d Cir. 2012) (discussing NYSHRL). Section 1981 claims are governed
by a four-year statute of limitations “if the plaintiff’s claim against the defendant was made possible
by” an Act of Congress enacted after December 1, 1990. Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369, 382 (2004). Other § 1981 claims in New York have a three-year limitations period. See Curto v.
Edmundson, 392 F.3d 502, 504 (2d Cir. 2004). Accordingly, we must determine whether Wright’s
claim would have been cognizable under § 1981, which was first enacted in 1866, prior to its
amendment by the Civil Rights Act of 1991.

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          Before the 1991 amendment, a failure-to-promote claim was cognizable under § 1981 “[o]nly
where the promotion rises to the level of an opportunity for a new and distinct relation between the
employee and the employer.” Patterson v. McClean Credit Union, 491 U.S. 164, 185 (1989), superseded by
statute, Civil Rights Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071, 1071–72. That standard
did not encompass promotions “given routinely upon satisfactory job performance” or “not
involving a substantial increase in status or responsibility.” Butts v. City of N.Y. Dep’t of Hous. Pres. &
Dev., 990 F.2d 1397, 1412 (2d Cir. 1993). But the pre-1991 statute did permit actions for the denial
of “any promotion that creates a qualitatively different relation between the employer and
employee.” Id.

         We have no trouble concluding that promotion from police sergeant to police lieutenant
entails the kind of “substantial increase in status or responsibility” necessary to assert a claim under
§ 1981 before its amendment. See id. (listing, as examples of actionable promotions, “a move from
factory worker to foreman, foreman to foreman supervisor, or manager to officer”). Promotion to
lieutenant is not “routine”; candidates must submit an application, sit for a specific “lieutenant’s
exam,” and interview with a promotional committee, App. 259–61. Once promoted, lieutenants take
a new oath of office, which suggests a “new and distinct relation” with the police department. Cf.
Patterson, 491 U.S. at 185. In addition, lieutenants receive significantly higher base pay and better
promotional opportunities than sergeants. We therefore conclude that a three-year statute of
limitations applies to Wright’s § 1981 claim.

        Like the District Court, we assume without deciding that Chapter 215 of the IMC authorizes
a private right of action, and conclude, as did the District Court, that any such claim would also be
governed by a three-year statute of limitations. The IMC itself does not specify a limitations period,
but N.Y.C.P.L.R. § 214(2) provides that “an action to recover upon a liability, penalty or forfeiture
created or imposed by statute” “must be commenced within three years.” New York courts have
interpreted that provision as applying where a “statute creates a liability for wrongs not recognized
in the common or decisional law, and which would not exist but for the statute.” Hartnett v. N.Y.C.
Transit Auth., 657 N.E.2d 773, 776 (N.Y. 1995) (internal quotation marks omitted). That definition
undisputedly describes liability for employment discrimination, which was not cognizable at
common law. Nonetheless, Wright argues that “statute,” as used in § 214(2), refers only to state, not
municipal, laws. But New York courts have consistently interpreted § 214(2) as applying to local
ordinances. See, e.g., Espada 2001 v. N.Y.C. Campaign Fin. Bd., 870 N.Y.S.2d 293, 298 (1st Dep’t
2008); Mindel v. Phoenix Owners Corp., 793 N.Y.S.2d 390, 390 (1st Dep’t 2005); City of New York v.
N.Y. Tel. Co., 489 N.Y.S.2d 474, 477 (1st Dep’t 1985); Fitzpatrick v. A.H. Robins Co., Inc., 470
N.Y.S.2d 414, 415 (2d Dep’t 1984); see also Sonmax, Inc. v. City of New York, 372 N.E.2d 9, 11 (N.Y.
1977) (“[F]or the purposes of [C.P.L.R. § 5601(b)(2)] a local law is to be considered a statutory
provision of the state.” (internal quotation marks omitted)); F.T.B. Realty Corp. v. Goodman, 89 N.E.2d
865, 867 (N.Y. 1949) (holding that a city ordinance “is a statutory provision of the state within the



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meaning of the . . . State Constitution” and Civil Practice Act § 588(4) (internal quotation marks
omitted)).

        Because each of Wright’s claims is governed by a three-year statute of limitations, each claim
is untimely. Wright learned no later than February 28, 2009—more than three years before he
commenced this action on February 29, 2012—of his most recent denied promotion. Wright
himself testified that he learned that Ithaca would instead promote Marlon Byrd, a black sergeant,
“about a week, week and a half, two weeks before” Byrd was sworn in on March 5, 2009. See App.
1224–25. A week before March 5, 2009, was February 27. That accords with an affidavit submitted
by defendant-appellee Edward Vallely, Ithaca’s former police chief, stating that he had offered the
promotion to Byrd on February 27, and that Vallely had told Wright of his decision before that date.
App. 500–03. A fortiori, Wright’s 2007 failure-to-promote claim is also untimely.

       Because Wright’s claims are untimely, we need not consider his arguments regarding
discovery. In any case, he waived the right to appellate review of the Magistrate Judge’s discovery
order by failing to object to it below. See Spence v. Md. Cas. Co., 995 F.2d 1147, 1155 (2d Cir. 1993).

        Finally, we reject Melissa Wright’s claim for loss of consortium. Even if we assume arguendo
that such a claim is cognizable under federal or state law, her derivative claim must fall with her
husband’s principal claims. See Griffin v. Garratt-Callahan Co., 74 F.3d 36, 40 (2d Cir. 1996).

                                           CONCLUSION

       We have reviewed all of the arguments raised by the Wrights on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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