        09-0974-cv
        Vuong v. New York Life Ins.

                              UNITED STATES COURT OF APPEALS
                                    F OR T HE S ECOND C IRCUIT

                                           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 Daniel Patrick Moynihan
        United States Courthouse, 500 Pearl Street, in the City of
        New York, on the 12 th day of January, two thousand and ten.

        Present: ROBERT D. SACK,
                 BARRINGTON D. PARKER,
                 RICHARD C. WESLEY,
                               Circuit Judges.
        ________________________________________________

        PHENG VUONG, also known as FRANK VUONG,
                          Plaintiff-Appellant,

                      - v. -                                          (09-0974-cv)

        NEW YORK LIFE INSURANCE COMPANY,
                          Defendant-Appellee.
        __________________________________________________

        Appearing for Appellant:                 JANET C. NESCHIS, McLaughlin &
                                                 Stern LLP, New York, New York.

        Appearing for Appellee:                  MICHAEL L. BANKS, Morgan, Lewis
                                                 & Bockius LLP, Philadelphia,
                                                 Pennsylvania.




                                                    1
          Appeal from the United States District Court for the
     Southern District of New York (Griesa, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the Southern District of New York be AFFIRMED.

 4       Plaintiff, Frank Vuong (“Plaintiff” or “Vuong”),

 5   appeals from the district court’s February 6, 2009 opinion

 6   and order granting summary judgment to Defendant, New York

 7   Life Insurance Company (“New York Life”).       On February 18,

 8   2003, Plaintiff filed a complaint against New York Life, his

 9   former employer, raising claims of discrimination and

10   retaliation in violation of Title VII of the Civil Rights

11   Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), 42

12   U.S.C. § 1981 (“§ 1981"), the California Fair Employment and

13   Housing Act, Cal. Gov’t Code § 12900 et seq. (the “FEHA”),

14   and the New York City Human Rights Law, N.Y.C. Admin Code §

15   8-107 et seq. (the “NYCHRL”).       We presume the parties’

16   familiarity with the underlying facts, the procedural

17   history of the case, and the issues presented on appeal.

18        As an initial matter, we agree with the district

19   court’s rulings regarding Plaintiff’s time-barred claims.

20   See Vuong v. N.Y. Life Ins. Co., No. 03 Civ. 1075 (TPG),

                                     2
 1   2009 WL 306391, at *7-11 (S.D.N.Y. Feb. 6, 2009).     The

 2   district court also properly concluded that Plaintiff

 3   alleged several timely claims.    Id. at *11-12.   The court

 4   found the following claims timely: (1) Plaintiff’s claim

 5   under § 1981 concerning Defendant’s decision not to promote

 6   him to sole managing partner of the San Francisco General

 7   Office (“SFGO”); (2) Plaintiff’s claims under Title VII, §

 8   1981 and the FEHA that he was wrongfully terminated from his

 9   position as co-manager of the SFGO; (3) Plaintiff’s claim

10   brought pursuant to Title VII that Defendant improperly

11   allocated different percentages of the SFGO’s performance-

12   related compensation to Vuong and his co-manager; (4)

13   Plaintiff’s claim that he was wrongfully denied a promotion

14   as managing partner of another New York Life office, brought

15   pursuant to Title VII, § 1981, and the FEHA; and (5)

16   Plaintiff’s retaliation claims.    Id.

17       It is well-known that “[o]n appeal from a decision to

18   grant summary judgment, we review the record de novo to

19   determine whether genuine issues of material fact exist

20   requiring a trial.”   Holcomb v. Iona Coll., 521 F.3d 130,

21   137 (2d Cir. 2008).   We may affirm the district court’s


                                   3
 1   grant of summary judgment “on any ground appearing in the

 2   record.”   Shumway v. United Parcel Serv., Inc., 118 F.3d 60,

 3   63 (2d Cir. 1997).

 4       When analyzing a claim of unlawful employment

 5   discrimination, we proceed under either the framework set

 6   out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798

 7   (1973), or under the “mixed-motive” analysis of Price

 8   Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989).     In this

 9   case, the district court analyzed Plaintiff’s claims under

10   the Price Waterhouse burden-shifting framework.    Vuong, 2009

11   WL 306391, at *12.

12       Price Waterhouse provides that when a plaintiff comes

13   forward with evidence that a discriminatory factor played a

14   “motivating part” in an adverse employment action, the

15   defendant can “avoid a finding of liability only by proving

16   by a preponderance of the evidence that it would have made

17   the same decision even if it had not taken” improper

18   considerations into account.   490 U.S. at 257.   “[D]irect

19   evidence of discrimination is not required in mixed-motive

20   cases,” Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02

21   (2003),” and this Court considers “circumstantial proof


                                    4
 1   which, if believed, would show discrimination,” Holcomb, 521

 2   F.3d at 137.     Of course, Plaintiff “must provide more than

 3   conclusory allegations to resist a motion for summary

 4   judgment.”     Id.   In this case, we affirm the grant of

 5   summary judgment because Defendant proffered legitimate,

 6   nondiscriminatory reasons for its allegedly adverse

 7   employment actions, and Plaintiff cannot show that these

 8   reasons were pretextual.      See McPherson v. N.Y. City Dep’t

 9   of Educ., 457 F.3d 211, 215 (2d Cir. 2006).

10       Under the appropriate McDonnell Douglas framework, even

11   granting that Plaintiff established a prima facie

12   discrimination case, there is no issue of material fact to

13   be tried.    First, Plaintiff has not provided evidence that

14   calls into question Defendant’s business judgment in

15   electing to appoint co-managers to the SFGO.      See Byrnie v.

16   Town of Cromwell, 243 F.3d 93, 105 (2d Cir. 2001).      Second,

17   it is undisputed that Plaintiff intentionally failed to

18   perform adequately in his position as co-manager for two

19   years.   Under these circumstances, Plaintiff cannot rebut

20   Defendant’s explanations for its decisions not to make him

21   the sole manager of the SFGO, to terminate him as co-manager


                                      5
 1   of the SFGO, and not to make him a manager at another New

 2   York Life office.   See Chambers v. TRM Copy Ctrs. Corp., 43

 3   F.3d 29, 38 (2d Cir. 1994).

 4       The district court properly concluded that Plaintiff

 5   did not produce evidence that discriminatory animus played a

 6   role in the allocation of compensation between Plaintiff and

 7   his co-manager of the SFGO.    Vuong, 2009 WL 306391, at *14.

 8   Plaintiff concedes that prior to their promotions, his co-

 9   manager earned more than he did.      Plaintiff does not

10   attribute a discriminatory motive to this pay differential,

11   which was carried forward when he and his co-manager were

12   promoted.

13       The district court dismissed Plaintiff’s allegations

14   brought pursuant to the NYCHRL, finding the NYCHRL

15   applicable only to discriminatory conduct that occurs within

16   the limits of New York City.    Id.    The New York Court of

17   Appeals has stated that the “Administrative Code of the City

18   of New York vests in the New York City Commission on Human

19   Rights the authority and jurisdiction to eliminate and

20   prevent discrimination within the City of New York.”       Levy

21   v. City Comm’n on Human Rights, 85 N.Y.2d 740, 743 (1995).


                                    6
 1   Here, there is no evidence in the record that any

 2   discriminatory decisions related to Plaintiff’s employment

 3   with Defendant were made in New York City.   Therefore,

 4   Plaintiff’s NYCHRL claim must fail under existing law.    Any

 5   arguable ambiguity regarding the meaning of the so-called

 6   “impact rule” under New York law created by the per curiam

 7   decision of Hoffman v. Parade Publ’ns, 878 N.Y.S.2d 320 (1st

 8   Dep’t 2009) does not affect our disposition in this case.

 9       The Court has reviewed Plaintiff’s remaining arguments

10   and finds them to be without merit.   Accordingly, the

11   judgment of the district court is hereby AFFIRMED.

12

13                              For the Court
14                              Catherine O’Hagan Wolfe, Clerk
15
16                              By: _________________________




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