     12-4850-cv
     Rich v. Associated Brands 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 19th day of March, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                              Circuit Judges,
 9                CHRISTINA REISS,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       MICHAEL N. RICH, JR.,
14
15              Plaintiff-Appellant,
16
17                    -v.-                                              No. 12-4850-cv
18
19       ASSOCIATED BRANDS INC.,
20
21            Intervenor-Defendant-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23


                *
               Chief Judge Christina Reiss, of the United States
         District Court for the District of Vermont, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:    TIMOTHY WILLIAM HOOVER (Myriah V.
 2                     Jaworski, on the brief), Phillips Lytle
 3                     LLP, Buffalo, NY.
 4
 5   FOR APPELLEE:     JOSHUA ISAAC FEINSTEIN, Hodgson Russ LLP,
 6                     Buffalo, NY.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Western District of New York (Skretny, C.J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Michael N. Rich., Jr. appeals a judgment dismissing his
16   claims against Associated Brands Inc. (“ABI”) for
17   discriminatory failure to hire and breach of contract. We
18   assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues on appeal.
20
21        We review de novo a grant of summary judgment, drawing
22   all reasonable inferences in the non-moving party’s favor.
23   See Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).
24   Summary judgment is appropriate if the record shows that
25   “there is no genuine dispute as to any material fact and the
26   movant is entitled to judgment as a matter of law.” Fed. R.
27   Civ. P. 56(a). A genuine dispute of material fact exists
28   only “where the evidence is such that a reasonable jury
29   could decide in the non-movant’s favor.” Beyer v. Cnty. of
30   Nassau, 524 F.3d 160, 163 (2d Cir. 2008).
31
32        1.  Discriminatory Failure to Hire. “The disposition
33   of employment discrimination actions is governed by
34   standards of proof set forth in McDonnell Douglas Corp. v.
35   Green, 411 U.S. 792, 798, 802–05 (1973).” Chertkova v.
36   Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996). To
37   meet his initial burden of establishing a prima facie case
38   of discrimination, Rich must demonstrate that: “(1) []he is
39   a member of a protected class; (2) []he applied and was
40   qualified for a job for which the employer was seeking
41   applicants; (3) []he suffered an adverse employment action;
42   and (4) the circumstances surrounding that action permit an
43   inference of discrimination.” Williams v. R.H. Donnelley,
44   Corp., 368 F.3d 123, 126 (2d Cir. 2004) (emphasis added).

                                  2
 1        Though Rich stated that he applied for positions with
 2   ABI three times between 2006 and 2008, he could not identify
 3   any such position specifically. He may have expressed
 4   interest in “any job” or any “future positions that were
 5   open,” J.A. 737-38, but there is no evidence in the record
 6   that he “applied and was qualified for a job for which the
 7   employer was seeking applicants,” an element of a prima
 8   facie case, see Williams, 368 F.3d at 126.
 9
10        Rich urges us to consider the applicability of an
11   exception to the “specific job” requirement in the failure
12   to promote context. See Mauro v. S. New England Telecomm.,
13   Inc., 208 F.3d 384, 387 (2d Cir. 2000) (per curiam).
14   However, this particular exception is “narrow.” Petrosino
15   v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004). The
16   “specific job” requirement
17
18       ensures that the fact finder is not left to
19       speculate as to the qualifications of the
20       competing candidates, the damages to be derived
21       from the salary of unknown jobs, the availability
22       of alternative positions, the plaintiff’s
23       willingness to serve in them (e.g., in other
24       locales or on other shifts), etc. The requirement
25       also protects employers from the unfair burden of
26       having to keep track of all employees who have
27       generally expressed an interest in promotion and
28       to consider each of them for any opening for which
29       they are qualified but did not specifically apply.
30
31   Id. (internal quotation marks and brackets omitted).
32
33        An exception to the “specific job” requirement may or
34   may not apply in the context of a failure to hire; but Rich
35   has advanced no evidence that he was actually qualified for
36   any available position. Almost all of Rich’s professional
37   experience since the late 1980s has been as a cost
38   accountant. But, as the record shows, the employer never
39   took applications for (or filled) Rich’s vacated cost
40   accountant position, and most of the accounting functions
41   previously performed at his plant were transferred to
42   corporate headquarters in Toronto in 2007. Mary Lou Rue,
43   the former ABI Human Resources Administrator, explained:
44

                                  3
 1       ABI did not have any vacancies at its Medina plant
 2       from January 2006 until . . . January 2009 for
 3       which Rich’s background as a cost accountant would
 4       have qualified him. During this period, the
 5       majority of vacancies at ABI’s Medina facility
 6       were for production line or maintenance workers.
 7       None of the limited openings for salaried
 8       employees were for cost accountants or comparable
 9       positions.
10
11   J.A. 266.
12
13        Rich’s other professional experiences were limited and
14   long removed from his most recent ABI employment. His
15   physical impairments significantly limited his options,
16   since, as Rich told the Social Security Administration, he
17   was unable to perform any work, including cost accounting
18   specifically. That fact may not be determinative, see
19   Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 807
20   (1999), but “an ADA plaintiff cannot simply ignore” a
21   successful claim of disability without explanation, id. at
22   798. The record confirms that Rich has raised no genuine
23   dispute of material fact as to whether an available ABI
24   position existed for which Rich was qualified.
25
26        2.  Breach of Contract. The district court was alert
27   to the tension between Rich’s earlier factual contentions
28   and his recent and highly fortuitous “discovery” of a
29   written agreement that provided Rich everything he wanted.
30
31        Rich alleged in his original complaint that ABI never
32   gave him a “signed benefits and consulting agreement as
33   verbally discussed and agreed to.” Rich v. Associated
34   Brands, Inc., No. 08-CV-666S, 2012 WL 5499501, at *3
35   (W.D.N.Y. Nov. 12, 2012). And on the first appeal to this
36   Court, Rich referred only to an oral consulting agreement.
37   See id.; see also Rich v. Associated Brands, Inc., 379 F.
38   App’x 78, 81 (2d Cir. 2001) (summary order). At no time did
39   Rich suggest that there was a fully executed written
40   separation agreement providing him the desired benefits.
41
42        The agreement itself is of dubious authenticity. The
43   title (“Original Separation Agreement”) suggests knowledge
44   of future agreements not yet existing, the only copies are

                                  4
 1   unsigned, ABI has no record of a signed version, and the
 2   agreement contemplates lifetime employment at almost treble
 3   Rich’s last salary. Moreover, when Rich’s benefits ended in
 4   August 2007, his letter to ABI referred only to the July
 5   2004 written agreement, which was also the only one Rich
 6   discussed with the Social Security Administration. Rich’s
 7   explanation, that he forgot about the “Original Separation
 8   Agreement” (and recalled it after finding an unsigned copy
 9   among old newspapers years later) cannot create a genuine
10   issue of material fact. See Rojas v. Roman Catholic Diocese
11   of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (per curiam).
12
13        Nor could any alleged oral understanding support a
14   breach of contract claim. Rich avers that an agreement
15   provides for six years of medical benefits and a consultancy
16   arrangement beginning 28 months after signing. New York’s
17   Statute of Frauds, however, voids oral contracts incapable
18   of being performed in a year. N.Y. Gen. Oblig. Law
19   § 5-701(a)(1).
20
21        3.  Docketing. Rich argues that the district court
22   clerk erroneously failed to docket Rich’s amended complaint
23   after Rich was granted leave to amend. Western District
24   Local Rule of Civil Procedure 15(c) provides that, “[i]f the
25   moving party is proceeding pro se, the Clerk of Court will
26   file the amended pleading upon granting of the motion.” But
27   the district court appointed counsel for Rich the very same
28   day it granted him leave to amend his complaint, so there
29   was no violation. Rich’s counsel could simply have filed
30   the amended complaint or alerted the district court to any
31   purported error, and the issue was never raised to the
32   district court during summary judgment proceedings. See
33   Island Software and Computer Serv., Inc. v. Microsoft Corp.,
34   413 F.3d 257, 262 (2d Cir. 2005) (“We have previously held
35   that objections and arguments not advanced during the
36   summary judgment hearing need not be addressed on appeal.”).
37
38        Even if there were some technical docketing error, Rich
39   suffered no possible prejudice. The new allegations in the
40   amended complaint are about the newly discovered “Original
41   Separation Agreement,” which was discussed at length in both
42   parties’ summary judgment submissions and which the district
43   court explicitly considered in its decision. And to the
44   extent Rich argues that amendment would have wiped the slate

                                  5
 1   clean on contradictory statements in earlier pleadings, he
 2   is incorrect. See Andrews v. Metro N. Commuter R.R. Co.,
 3   882 F.2d 705, 707 (2d Cir. 1989) (“The amendment of a
 4   pleading does not make it any the less an admission of the
 5   party.”).
 6
 7        We have considered all of Rich’s remaining arguments
 8   and conclude that they are without merit. The judgment of
 9   the district court is hereby affirmed.
10
11                              FOR THE COURT:
12                              CATHERINE O’HAGAN WOLFE, CLERK
13




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