12-3817-cv
Harding v. Wachovia Capital Mkts., LLC


                                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
ASUMMARY 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 4th day of September, two thousand thirteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
----------------------------------------------------------------------
CALVIN HARDING,
                                 Plaintiff-Appellant,

                              v.                                         No. 12-3817-cv

WACHOVIA CAPITAL MARKETS, LLC, WELLS
FARGO SECURITIES LLC, RICHARD SILVA,
RICHARD SANDULLI,
                                 Defendants-Appellees.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          JASON SOLOTAROFF, Giskan Solotaroff
                                                  Anderson & Stewart LLP, New York, New York.

APPEARING FOR APPELLEES:                         KENNETH J. TURNBULL (Anna Kolontyrsky,
                                                 on the brief), Morgan, Lewis & Bockius LLP,
                                                 New York, New York.

          Appeal from a judgment of the United States District Court for the Southern District

of New York (J. Paul Oetken, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 21, 2012, is AFFIRMED.

       Plaintiff Calvin Harding appeals from an award of summary judgment to defendants

Wachovia Capital Markets, LLC; Wells Fargo Securities LLC; Richard Silva; and Richard

Sandulli on Harding’s federal and state claims of race discrimination in promotion. See

42 U.S.C. § 1981; N.Y.C. Admin. Code § 8-107.1 We review an award of summary

judgment de novo, resolving all ambiguities and drawing all inferences in favor of the

nonmovant, and we will affirm only if the record reveals no genuine dispute of material

fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir. 2011). We assume the parties’

familiarity with the underlying facts and the record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.

       We analyze § 1981 race discrimination claims under the familiar burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004) (Sotomayor, J.).

Assuming arguendo that Harding has carried his initial prima facie burden as to the

challenged hirings and promotions, including that of Emily Charette, we conclude that the

1
  Harding only alludes in passing to his state claim under the New York City Human
Rights Law and fails to articulate any way in which his case would fare differently under
state than under federal law. Since Harding has failed to argue the point, we consider the
claim abandoned, see Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997), and
thus need not consider the district court’s failure to analyze the state and federal claims
separately, see Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 102 (2d
Cir. 2013).

                                             2
district court properly held that he nevertheless failed to adduce evidence sufficient to

permit a reasonable trier of fact to find that defendants’ nondiscriminatory reasons for the

challenged employment decisions were a pretext for race discrimination.

       In urging otherwise, Harding submits that pretext can be inferred from

inconsistencies in defendants’ hiring decisions, their failure to follow their own hiring

practices, and the lack of contemporaneous evidence supporting their hiring choices.

       As to the first, Harding asserts that although defendants now contend that they hired

or promoted persons with “specific skill sets” for the positions they were seeking to fill,

Appellant’s Br. 24, they had earlier indicated that they wanted to staff the front desk with

people who had middle-office backgrounds, which he possessed, see id. at 24–25. In

support, Harding points to deposition testimony of Richard Silva in an unrelated matter, in

which Silva, explaining the hiring of Dana Barta, stated that defendants “needed to put

more of a middle-office process around the operations and execution of [front-office]

business.” Sept. 22, 2010 Silva Dep. Tr. 96:23–25, J.A. 254. In that same deposition,

however, Silva also stated that Barta “had CDO experience and kind of fixed income

structured securitization experience,” which “would be very relevant to where we were

trying to go with that business.” Id. at 94:19–23, J.A. 254. These statements were

consistent with Silva’s 2011 testimony in this action, where he had explained that Barta

had direct experience working “for JPMorgan in the CDO group. She had been through

the rating agency process . . . [and] held herself out to understand the rating agency

methodologies, the principles, how they look at assets and rate securities.” Sept. 1, 2011

                                             3
Silva Dep. Tr. 92:14–20, J.A. 444; see also id. at 93:5–7, J.A. 445 (reporting that employee

thought Barta “would be a perfect fit, because of her skill set, with what he was trying to

do”). Thus, the record reveals no inconsistency with respect to Barta’s hire that would

permit a finding of pretext. Cf. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir.

2000) (concluding that plaintiff demonstrated pretext because proffered reasons for

dismissal in current suit directly contradicted previously stated reasons); EEOC v. Ethan

Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (holding that shifting explanations developed

over time to counter evidence of age discrimination uncovered in state investigation could

support inference of discrimination).

       The same conclusion obtains with respect to Christina Petrou’s promotion.

Harding asserts that Richard Sandulli testified that Petrou “was hired because of her legal

background to assist Mr. Threadgill with legal work,” when, in fact, she did not do legal

work with Threadgill or otherwise. Appellant’s Br. 27. In fact, Sandulli testified that

Threadgill had expressed a need for someone with Petrou’s background and wanted

“somebody else to do . . . the routine kind of paralegal type work” that Threadgill needed.

Sandulli Dep. Tr. 56:20–24, J.A. 268.        These statements are not inconsistent with

Threadgill’s deposition testimony in this case that Petrou was hired to support him and

with Silva’s testimony that Petrou was hired to work in Threadgill’s group. Record

evidence further indicates that Petrou was hired for her background in both compliance and

legal, and was expected to “interfac[e] with the compliance and legal process[es],” Sept. 1,

2011 Silva Dep. Tr. 82:10–12, J.A. 242, which related to one another. Thus, the record

                                             4
supports, rather than contradicts, defendants’ assertions that Petrou’s special skills

informed her hire, precluding an inference of pretext.

       Insofar as Harding conclusorily asserts that pretext may be inferred from

defendants’ failure to follow normal hiring practices “where a minority employee is

involved,” Appellant’s Br. 25, he fails to explain what normal practices he is referring to

and how defendants deviated from them in his case and, indeed, admits that defendants’

“hiring process was extremely informal and fluid,” id. at 11. In the absence of any

supporting evidence, Harding cannot demonstrate pretext by claiming deviation from

normal practices. Cf. Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312–13 (2d Cir.

1997) (holding that evidence of defendant’s substantial deviation from ingrained normal

hiring procedure demonstrated pretext).

       Where the plaintiff fails to adduce evidence of discrimination, pretext or an

inference of discrimination cannot arise from defendants’ mere failure to produce

contemporaneous evidence supporting their proffered reasons for the challenged hiring

decisions. Such an inference may be drawn where a defendant’s proffered reason for a

challenged employment action is contradicted by other evidence. See, e.g., Carlton v.

Mystic Transp., Inc., 202 F.3d at 137 (observing that purported non-discriminatory reason

“appear[ed] questionable” in light of contrary contemporaneous justification for

termination); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 34, 39 (2d Cir. 1994)

(stating that factfinder could infer pretext from lack of contemporaneous evidence of poor

performance in light of objective evidence of strong performance). But here, no record

                                             5
evidence contradicts defendants’ assertion that the employees they hired for the front desk

were the best candidates for the job. Nor is there any reason to conclude that defendants’

proffered nondiscriminatory, legitimate reason was “so lacking in merit” as to constitute “a

reason manufactured to avoid liability.” Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1116

(2d Cir. 1988).2

       Nor did Harding adduce any other evidence indicating that defendants’ hiring

decisions were animated by racial bias. See Garcia v. Hartford Police Dep’t, 706 F.3d

120, 129 (2d Cir. 2013) (requiring plaintiff “to point to evidence suggesting that

discriminatory animus was motivating factor” (emphasis in original)). Even crediting

Harding’s assertion that he possessed technical skills and product knowledge superior to

Petrou’s and Murphy’s, the record raises questions about his sales qualities. Meanwhile,

it indicates that Charette excelled in this respect, and that other hires had particular skill

sets that defendants valued: Barta in securitization, Petrou in compliance, and Murphy in

accounting. Harding may disagree with defendants’ decision to value these skills, but to

support an inference of race discrimination he was obliged to adduce evidence that his own

qualifications were “so superior” to those of Charette, Petrou, Barta, and Murphy that no

2
  Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir. 2012), relied on by Harding, is not to the
contrary. Although the court there held that the lack of contemporaneous evidence “could
lead a reasonable jury to doubt the [employer’s] explanation” for the failure to promote the
plaintiff, id. at 1356 (emphasis in original), the court based this conclusion on the fact that
(1) the plaintiff was “significantly better qualified” than the person ultimately promoted,
id. at 1355, and (2) the lack of evidence contravened the employer’s own requirement of
“documentation of a promotion action sufficient for a reviewer to reconstruct the action in
its entirety,” id. at 1356 (internal quotation marks omitted). Such considerations are not
present here.

                                              6
reasonable employer, “in the exercise of impartial judgment, could have chosen [them]

over the plaintiff for the job[s] in question.” Byrnie v. Town of Cromwell, 243 F.3d 93,

103 (2d Cir. 2001) (internal quotation marks omitted). The record does not admit such a

conclusion.

      In sum, we conclude, as the district court did, that Harding failed to carry his burden

of demonstrating that defendants’ non-discriminatory reason for not promoting him was

pretextual, or that the real reason he was not promoted was racial bias.           We have

considered Harding’s remaining arguments and conclude that they are without merit. The

judgment of the district court is therefore AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O=HAGAN WOLFE, Clerk of Court




                                             7
