12-4112-cv
Benson v. Otis Elevator Co.

                           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 Courthouse, 40 Foley Square, in the City of New York, on the 21st day of
February, two thousand fourteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         RALPH K. WINTER,
         GUIDO CALABRESI,
                     Circuit Judges.
________________________________________________

KELLEY STAPLES BENSON,

           Plaintiff-Appellant,

                  v.                                            No. 12-4112-cv

OTIS ELEVATOR COMPANY, UNITED
TECHNOLOGIES CORPORATION, and JACK HAGER,

         Defendants-Appellees.
________________________________________________

For Plaintiff-Appellant:          ERIC ANDREW SUFFIN, Law Firm of Eric A. Suffin, New York,
                                  NY

For Defendant-Appellee:           KRISTIN G. MCGURN (Mary E. Ahrens, on the brief), Seyfarth
                                  Shaw LLP, New York, NY
      Appeal from the United States District Court for the Southern District of New York
(Engelmayer, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Kelley Staples Benson appeals from a September 14, 2012 judgment

of the United States District Court for the Southern District of New York (Engelmayer, J.),

granting summary judgment to Defendants-Appellees Otis Elevator Company (“Otis”), United

Technologies Corporation (“UTC”), and Jack Hager on Benson’s employment discrimination

claims under the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law

§ 296(1)(a), and the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code

§ 8-107(1)(a). Benson, a former Otis employee who was assigned to the Service Sales

department of Otis’s Manhattan South Branch as part of Otis’s Leadership Rotation Program

(“LRP”), alleges that the defendants terminated her employment because she is African-

American. On appeal, Benson argues that the district court improperly resolved genuine issues of

material fact against her and that her claims should have been allowed to proceed to a jury trial.

Benson also challenges the district court’s denial of her request for an extension of fact

discovery, as well as the district court’s issuance of a protective order governing the treatment of

confidential discovery materials. We presume the parties’ familiarity with the facts and

procedural history of this case.

       We review a district court’s grant of summary judgment de novo, resolving all

ambiguities and drawing all reasonable inferences in favor of the nonmoving party. See Mihalik

v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). Summary judgment



                                                 2
is appropriate only where “the movant shows that 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).

       Both the NYSHRL and NYCHRL prohibit employers from, among other things,

discriminating on the basis of race or color. N.Y. Exec. Law § 296(1)(a); N.Y. City Admin Code

§ 8-107(a)(1). We analyze claims under the NYSHRL under the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Estate of Hamilton v. City

of New York, 627 F.3d 50, 55 (2d Cir. 2010) (per curiam), abrogated on other grounds by

Mihalik, 715 F.3d at 108–09. Under that framework, if a plaintiff puts forth a prima facie case of

discrimination and the defendant then provides a nondiscriminatory justification for its actions,

the burden shifts back to the plaintiff to prove that the proffered justification is pretextual.

McDonnel Douglas, 411 U.S. at 802–04. We analyze claims under the NYCHRL “separately and

independently from any federal and state law claims,” and construe the NYCHRL “broadly in

favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.”

Mihalik, 715 F.3d at 109 (internal quotation marks omitted). An employer “is entitled to

summary judgment [under the NYCHRL] only if the record establishes as a matter of law that

‘discrimination play[ed] no role’ in its actions.” Id. at 110 n.8 (quoting Williams v. N.Y.C. Hous.

Auth., 872 N.Y.S.2d 27, 40 n.27 (N.Y. App. Div. 2009)).

       In this case, the defendants contend that Benson’s employment was terminated as part of

a company-wide “reduction-in-force” program because her position was no longer suited to

Otis’s business needs and because her performance was subpar. Benson argues that these

rationales were pretextual, pointing to a few comments made by two superiors, the fact that other

non-African American LRP participants were not fired as part of the downsizing program, and a


                                                   3
series of workplace grievances. But while two of the comments Benson cites certainly had racial

undertones, there is no evidence that they were malicious. In any event, the two comments

occurred more than a year before Benson’s termination, and were not made by Defendant Hager,

the manager with sole responsibility for Benson’s termination. Additionally, the record is devoid

of evidence that the other LRP participants to whom Benson refers, who worked under different

managers in other branches and regions, were similarly situated to Benson. There is likewise no

evidence that any of the actions underlying Benson’s grievances were attributable to her race or

color. In sum, we find no evidence in the record that would allow a reasonable jury to conclude

that the defendants’ proffered justifications were pretextual, or that race or color played any role

in Benson’s termination.

        Turning to Benson’s aiding and abetting claims, because Benson failed to raise a genuine

factual dispute with respect to the defendants’ discriminatory intent, the district court properly

dismissed these claims for failure to adduce evidence sufficient to establish a primary violation.

See, e.g., Strauss v. N.Y. State Dep’t of Educ., 805 N.Y.S.2d 704, 709 (N.Y. App. Div. 2005);.

        As to Benson’s discovery challenges, we review a district court’s discovery rulings for

abuse of discretion. Wood v. FBI, 432 F.3d 78, 82 (2d Cir. 2005). Benson first argues that the

district court abused its discretion by denying her request to extend the deadline for fact

discovery. But when opposing the defendants’ motion for summary judgment, Benson failed to

submit an affidavit or declaration under Federal Rule of Civil Procedure 56(d) explaining why

evidence necessary to justify her opposition was not available to her. “[T]he failure to file an

affidavit under [this rule] is itself sufficient grounds to reject a claim that the opportunity for



                                                   4
discovery was inadequate.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir.

1994).1

          Benson also argues that the district court abused its discretion in issuing a protective

order governing the treatment of confidential discovery materials. We find no merit in Benson’s

contention that this order somehow relieved the producing party of its burden to show that

confidential treatment was necessary and shifted the burden to the nonproducing party to show

that protection was unnecessary. In any event, Benson identifies no discovery material that was

inappropriately designated as confidential, nor does she explain how her inability to disclose

such material to third parties harmed her in any way.

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

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




          1
         Before 2010, Rule 56(d) was codified as Rule 56(f). See Fed. R. Civ. P. 56, Advisory
Comm. Notes (2010 Amendments) (“Subdivision (d) carries forward without substantial change
the provisions of former subdivision (f).”).

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