11-864-cv
Bar-Tur v. Arience Capital Management, L.P.

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
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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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of August, two thousand twelve.
PRESENT:
            DENNY CHIN,
            SUSAN L. CARNEY,
                      Circuit Judges,
            STEFAN R. UNDERHILL,
                      District Judge.*

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REBECCA BAR-TUR,
          Plaintiff-Appellant,

                  -v.-                                11-864-cv

ARIENCE CAPITAL MANAGEMENT, L.P.,
ARIENCE ASSOCIATES, L.L.C.,
CARYN SEIDMAN-BECKER,
          Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:            TODD A. GUTFLEISCH, Wechsler &
                                    Cohen, LLP, New York, New York.

FOR DEFENDANTS-APPELLEES:           LLOYD BLADES CHINN (Anne C.
                                    Manolakas, on the brief), Proskauer
                                    Rose LLP, New York, New York.




      *
          Hon. Stefan R. Underhill, United States District Judge
for the District of Connecticut, sitting by designation.
             Appeal from a judgment of the United States District

Court for the Southern District of New York (Daniels, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED

in part and VACATED in part and the case is REMANDED for further

proceedings.

          Plaintiff-appellant Rebecca Bar-Tur appeals from the

district court's February 9, 2011 judgment dismissing her

complaint.     The district court entered judgment pursuant to its

memorandum decision and order also dated February 9, 2011.    We

assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

          Bar-Tur was a senior analyst and limited partner at

defendant-appellee Arience Capital Management, L.P. ("Arience")

until her employment was terminated in November 2008.     She filed

suit in the district court alleging that Arience (1) failed to

pay her certain management and incentive fees in breach of her

employment agreement and in violation of the New York State Labor
Law and (2) terminated her employment for discriminatory and

retaliatory reasons in violation of the Americans with

Disabilities Act (the "ADA") and state and city law.    The

district court granted summary judgment in favor of Arience and

dismissed all of Bar-Tur's claims.

          We review the district court's grant of summary

judgment de novo.     Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 59-

60 (2d Cir. 2010).    For summary judgment to be granted, there

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must be "'no genuine issue as to any material fact'" and the

movant must be "'entitled to judgment as a matter of law.'"     Id.

at 60 (quoting Fed. R. Civ. P. 56(a)).    In deciding a motion for

summary judgment, the court must resolve ambiguities and draw

reasonable inferences against the movant and review factual

determinations "in the light most favorable to the non-moving

party."   Id.

            We have conducted an independent review of the record

in light of these principles and conclude that the district court

correctly dismissed Bar-Tur's claims under the New York Labor

Law, but that it erred in granting summary judgment with respect

to Bar-Tur's breach of contract claim as well as Bar-Tur's

discrimination and retaliation claims under the ADA and state and

city law.
     1.     New York Labor Law

            Bar-Tur's claim that Arience's failure to pay her

management and incentive fees violated § 193 of the New York

Labor Law fails as a matter of law, as the district court held.

The compensation at issue here was a form of "'incentive

compensation' . . . more in the nature of a profit-sharing

arrangement . . . contingent and dependent, at least in part, on

the financial success of the business enterprise."   Truelove v.
Ne. Capital & Advisory, 95 N.Y.2d 220, 223-24 (2000).    Under the

plain terms of Bar-Tur's employment agreement, the disputed

compensation was tied to Arience's financial success.    Hence, it

was not covered by the Labor Law.


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     2.      Breach of Contract

             Bar-Tur's employment agreement provided that she would

be paid a percentage of incentive fees and incentive allocations

"received" by Arience.     The district court found that this

provision was unambiguous and that Bar-Tur was only entitled to

fees and allocations "earned" by the firm during her tenure.     In

other words, the district court held that "received" meant

"earned" and that Bar-Tur was not entitled to a percentage of

fees and allocations "earned" before she began her employment at

the firm even though the fees and allocations were paid to

Arience during her tenure.

             While the district court's reading of the employment

agreement was entirely plausible, we conclude that the employment

agreement was ambiguous in this respect and that Bar-Tur's

reading of the agreement -- that she was entitled to a percentage

of fees and allocations paid to Arience during her employment

even though they were "earned" before she started -- was also

plausible.    See Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 66
(2d Cir. 2000) ("Ambiguous language is language that is 'capable

of more than one meaning when viewed objectively by a reasonably

intelligent person who has examined the context of the entire

integrated agreement and who is cognizant of the customs,

practices, usages and terminology as generally understood in the

particular trade or business.'") (quoting Seiden Assocs., Inc. v.
ANC Holdings, Inc. 959 F.2d 425, 428 (2d Cir. 1992)).     We remand

for the district court to consider any relevant extrinsic

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evidence and to apply the rules of contract construction to

ascertain the intent of the parties.   See Seiden Assocs., 959

F.2d at 428 ("Where the language used is susceptible to differing

interpretations, each of which may be said to be as reasonable as

another, and where there is relevant extrinsic evidence of the

parties' actual intent, the meaning of the words become[s] an

issue of fact and summary judgment is inappropriate.").

            We note also that there is a genuine dispute between

the parties as to how the amounts paid to Bar-Tur were

calculated.    In her reply brief, Bar-Tur raises several

discrepancies in the documents Arience apparently used to support

its calculations.   (See Reply Br. at 7-10).   It would appear that

further factual inquiry is warranted as to the calculations in

question.
     3.     Discrimination and Retaliation

            We also conclude that Bar-Tur presented sufficient

evidence from which a reasonable jury could conclude that she was

demoted or discharged for discriminatory or retaliatory reasons

in violation of her rights under the ADA and state and city law.

            The district court concluded that "Bar-Tur fails to

carry her burden of establishing as a matter of law that her

CVID [Common Variable Immunodeficiency] substantially impacts her
ability to breath[e], sleep or speak."   Bar-Tur v. Arience

Capital Mgmt., L.P., No. 09 Civ. 2653, 2011 WL 565333, at *7

(S.D.N.Y. Feb. 9, 2011) (emphasis in original).    On summary

judgment, of course, the question was not whether Bar-Tur

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"establish[ed]" her claim, id., but whether she presented

sufficient evidence to raise an issue of fact for trial.      We

believe that she did.    In opposing the motion for summary

judgment, she presented evidence of the following:    CVID is a

genetically determined primary immunity deficiency that

interferes with a patient's ability to produce sufficient

antibodies in response to exposure to pathogens, resulting in

greater vulnerability to viruses, infections, bronchitis, and

pneumonia.    The CVID caused Bar-Tur's sleep to be "significantly

disrupted."    (Bar-Tur Decl. ¶ 20).   "Because [she] could not

sleep, [her] lack of good health was visible."    (Id. at ¶ 21).

Her "breathing [was] limited" as she "struggle[d] to breathe,"

and she regularly suffered from sinus infections and flu-like

symptoms.    (Id. at ¶ 20).
            The district court concluded that Bar-Tur's "moderately

active lifestyle weighs heavily against finding that she is

substantially limited in her ability to breathe."    Bar-Tur, 2011

WL 565333 at *8.    While there certainly was evidence in the

record that Bar-Tur maintained an active lifestyle, there was

also evidence that Bar-Tur's medical condition substantially

limited her major life activities of sleeping and breathing.

Instead of merely ascertaining whether any issues of fact existed

for trial, the district court weighed the evidence and resolved

the factual dispute on the motion for summary judgment against

the non-moving party.   See St. Pierre v. Dyer, 208 F.3d 394, 404



                                 -6-
(2d Cir. 2000) ("In ruling on [a summary judgment motion], the

court is not entitled to weigh the evidence.").

           In addition, Bar-Tur presented evidence from which a

rational jury could find that Arience's employment decisions were

motivated by her medical condition.    The record contained

evidence that at the time of her demotion and discharge, Arience

employees commented that:   (1) Bar-Tur would be able to attend to

her "little doctor's appointments" now that she was relieved of

certain responsibilities (Bar-Tur Decl. ¶ 37 (quotation marks

omitted)); (2) the demotion was "supposed to be a personal

opportunity for [Bar-Tur] to take care of some important things

in [her] life" (Chinn Decl. Ex. 60); and (3) Arience wanted to

give Bar-Tur "space to work through [her] health issues" (Bar-Tur

Decl. ¶ 46 (quotation marks and emphasis omitted)).

           The district court concluded that even if Bar-Tur's

CVID qualified as a disability, the "undisputed record more than

establishe[d] that Arience had a legitimate, nondiscriminatory

reason for dismissing Bar-Tur," i.e., her work performance.   Bar-
Tur, 2011 WL 56533 at *8.   The record in this respect, however,

was disputed, as Bar-Tur presented substantial evidence of her

good work performance, including a positive performance review,

assurances that she was a "great partner," and numerous

complimentary emails about her work.

           Finally, as to the retaliation claim, we conclude that

there was sufficient evidence in the record to raise an issue for

trial.   A reasonable jury could find, for example, that (1) on

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November 4, 2008, Bar-Tur sent an email to her supervisor as well

as to Michael Gennaro, Arience's chief financial officer and

chief operating officer, complaining of her treatment because of

her health; (2) she was told to go home approximately an hour and

a half later, with her access to Arience's email, voicemail, and

computer systems being immediately terminated; and (3) Bar-Tur

was formally discharged just two days later.    Together, with the

other evidence in the record discussed above, the timing and

sequence of these events would permit a jury to find a sufficient

causal connection to rule in favor of Bar-Tur on her claim of

retaliation.   This is not a case where timing was the only basis

for a claim of retaliation.    See Slattery v. Swiss Reinsurance
Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001); see also El Sayed v.

Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010) (affirming grant

of summary judgment where plaintiff's only evidence of

retaliation was temporal proximity).
                              CONCLUSION

          We have considered the parties' remaining arguments on

appeal and find them to be without merit.    Accordingly, the

judgment of the district court is hereby AFFIRMED in part and

VACATED in part and the case is REMANDED for further proceedings

with respect to Bar-Tur's breach of contract, discrimination, and

retaliation claims.



                          FOR THE COURT:
                          CATHERINE O'HAGAN WOLFE, CLERK




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