12-2742
Underdog Trucking, L.L.C. v. Cellco Partnership


                                 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 14th day of March, two thousand thirteen.

PRESENT: JOHN M. WALKER, JR.,
         ROBERT D. SACK,
         GERARD E. LYNCH,
                         Circuit Judges.

————————————————————————

UNDERDOG TRUCKING, L.L.C.,

                                                  Plaintiff - Appellant,
and

REGGIE ANDERS,
                                                  Plaintiff,

                               v.                                          No. 12-2742-cv

CELLCO PARTNERSHIP, d/b/a VERIZON WIRELESS,

                                                  Defendant - Appellee,

and

OSCAR APONTE, MATT CHAPPELL, DOES 1 through 19,
ABC INSURANCE COMPANY, DEF INSURANCE COMPANY,
XYZ INSURANCE COMPANY,

                                                  Defendants.

————————————————————————
FOR APPELLANT:               JAPHETH MATEMU, Matemu Law Office P.C., Raleigh,
                             North Carolina.

FOR APPELLEES:               RAYMOND G. MCGUIRE, Kauff McGuire & Margolis
                             LLP, New York, New York.




       Appeal from the United States District Court for the Southern District of New

York (Denise Cote, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Underdog Trucking, L.L.C. (“Underdog”), appeals an award of

summary judgment in favor of Cellco Partnership d/b/a Verizon Wireless (“Verizon”),

and dismissing Underdog’s claims for, inter alia, race discrimination in violation of 42

U.S.C. § 1981.1 The United States District Court for the Southern District of New York

(Denise Cote, Judge), granted Verizon’s motion for summary judgment. We assume the

parties’ familiarity with the underlying facts, procedural history and issues on appeal,

which we reference only as necessary to explain this order.

       We review a district court’s grant of summary judgment de novo, see Fabrikant v.

French, 691 F.3d 193, 205 (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


       1
         Because Underdog has not addressed any of its other claims in either its opening or
reply brief, we consider those claims abandoned. See LoSacco v. City of Middletown, 71
F.3d 88, 92-93 (2d Cir. 1995).

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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). “The mere existence of a scintilla of evidence in support of

the plaintiff’s position will be insufficient” to defeat a summary judgment motion.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Likewise, “conclusory

statements or mere allegations” will not suffice to defeat a summary judgment motion.

Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

       Section 1981 “protects the equal right of ‘[a]ll persons within the jurisdiction of

the United States’ to ‘make and enforce contracts’ without respect to race,” Domino’s

Pizza, Inc. v. McDonald, 546 U.S. 470, 474-75 (2006), citing 42 U.S.C. § 1981(a). Under

§ 1981, a plaintiff is entitled to relief “when racial discrimination blocks the creation of a

contractual relationship, as well as when racial discrimination impairs an existing

contractual relationship.” Domino’s, 546 U.S. at 476. At the summary judgment stage,

we apply the burden-shifting framework set forth in McDonnell Douglas v. Green, 411

U.S. 792, 802-03 (1973), to claims arising under § 1981 that rely on indirect evidence of

discriminatory intent. See Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).

       Under the McDonnell Douglas framework, the plaintiff must first establish a prima

facie case of discrimination by demonstrating: (1) membership in a protected class; (2)

that he was impaired by the defendant in the making or enforcing of a contract; and (3)

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circumstances surrounding that impairment give rise to an inference of discrimination.

See Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). Once the plaintiff has

established a prima facie showing of discrimination, the burden then shifts to the

defendant to articulate some legitimate, nondiscriminatory reason for the adverse action.

Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010). The defendant “must clearly set

forth, through the introduction of admissible evidence, reasons for its actions which, if

believed by the trier of fact, would support a finding that unlawful discrimination was not

the cause of the [adverse] action.” St Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507

(1993) (internal quotation marks omitted; emphasis retained).

       Once the defendant proffers a legitimate, nondiscriminatory reason for the

challenged action, “the presumption of discrimination arising with the establishment of

the prima facie case drops from the picture.” Weinstock v. Columbia Univ., 224 F.3d 33,

42 (2d Cir. 2000). The burden then shifts back to the plaintiff to “come forward with

evidence that the defendant’s proffered, non-discriminatory reason is a mere pretext for

actual discrimination.” Id. This requires the plaintiff to produce “not simply some

evidence, but sufficient evidence to support a rational finding that the legitimate,

nondiscriminatory reasons proffered by the [defendant] were false, and that more likely

than not discrimination was the real reason for the [adverse action].” Van Zant v. KLM

Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (internal quotation marks and

alteration omitted).




                                              4
       Having reviewed the record de novo in light of the foregoing principles of law, we

conclude that summary judgment was warranted. We assume, without deciding, that

Underdog, whose owner was black, has established a prima facie case of discrimination.

Verizon has proffered a legitimate, nondiscriminatory reason for assigning work to

Underdog’s competitor, whose owner was white – namely, that Underdog’s competitor

offered the same services at a substantially lower rate. Although Underdog offers

additional circumstantial evidence that evinces some level of racial discord between

Underdog and Verizon, the evidence is not sufficient to rationally support a finding that

Verizon’s proffered reason was a “mere pretext” for racial discrimination. Weinstock,

224 F.3d at 42.

       We have considered all of Underdog’s remaining arguments and find them to be

without merit.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk of Court




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