     14-1281
     Joseph v. Owens & Minor Distribution, Inc.


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
1    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
2    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
3    FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
4    CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
5    EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
6    “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
7    PARTY NOT REPRESENTED BY COUNSEL.
8
 9          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
10   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
11    17th day of February, two thousand fifteen.
12
13   PRESENT:
14
15           AMALYA L. KEARSE,
16           DEBRA ANN LIVINGSTON,
17           SUSAN L. CARNEY,
18
19                           Circuit Judges.
20   ______________________________________________
21
22   HANCY P. JOSEPH,
23
24                                     Plaintiff-Appellant,
25
26                    -v.-                                                    No. 14-1281
27
28   OWENS AND MINOR DISTRIBUTION, INC.,
29
30                           Defendant-Appellee.
31   __________________________________________
32
33   FOR PLAINTIFF-APPELLANT:                     Alexander Martin Dudelson, Law Offices of Alexander M.
34                                                Dudelson, Brooklyn, NY.
35
36   FOR DEFENDANT-APPELLEE:                      Ira G. Rosenstein, Ashley J. Hale, Morgan, Lewis & Bockius
37                                                LLP, New York, NY.

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 1
 2
 3          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

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

 5          Plaintiff-Appellant Hancy P. Joseph (“Joseph”) worked for Defendant-Appellee Owens &

 6   Minor Distribution, Inc. (“O&M”) from February 2008 until the company fired him in October

 7   2010. A year later, on October 28, 2011, Joseph filed suit against O&M in the United States District

 8   Court for the Eastern District of New York, claiming that the company violated Title VII of the Civil

 9   Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law,

10   N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.

11   Admin. Code § 8-101 et seq. (“NYCHRL”). Joseph alleged, inter alia, that O&M discriminated

12   against him on the basis of race and nationality when it decided to end his employment. After

13   discovery, O&M moved for summary judgment on all of Joseph’s claims. The district court (Brodie,

14   J.) granted the motion on March 24, 2014. Joseph v. Owens & Minor Distrib., Inc., 5 F. Supp. 3d

15   295 (E.D.N.Y. 2014). This appeal followed. We assume the parties’ familiarity with the underlying

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

17          This Court “review[s] a district court’s decision to grant summary judgment de novo,

18   resolving all ambiguities and drawing all permissible factual inferences in favor of the party against

19   whom summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal

20   quotation marks omitted). Summary judgment is appropriate only when “the movant shows that

21   there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

22   of law.” Fed. R. Civ. P. 56(a).

23          We analyze Joseph’s discrimination claims under Title VII and the NYSHRL using the


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 1   familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

 2   (1973). See, e.g., Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Under

 3   that three-step test, “the plaintiff bears the initial burden of establishing a prima facie case of

 4   discrimination.” Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008). “If the plaintiff does

 5   so, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for

 6   its action.” Id. (internal quotation marks omitted). Once the defendant provides such a reason, the

 7   burden shifts back to the plaintiff to show that the defendant’s explanation was not the only reason

 8   for the employment decision “and that [discrimination] was at least one of the motivating factors.”

 9   Id. (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)) (internal quotation marks

10   omitted).

11          We agree with the district court’s decision that O&M proferred a legitimate reason for firing

12   Joseph and that the record contains no evidence from which a reasonable jury could conclude that

13   the company’s decision was motivated by discrimination on the basis of race or nationality. See

14   Joseph, 5 F. Supp. 3d at 313-15.1 On September 22, 2010, Joseph had a dispute with a client at New

15   York Methodist Hospital. The client called Joseph’s supervisor, David White, during the quarrel.

16   White knew that Joseph had a history of disputes with clients and, hearing him over the phone,

17   found his tone to be “inappropriate . . . and of deep concern.” J.A. 174. Later that day, the client

18   left White a voicemail explaining that he would not be able to work with Joseph in the future. After

19   being unable to find a new assignment for Joseph, White fired him. Joseph does not deny that the

20   dispute occurred or that it could serve as a legitimate, nondiscriminatory basis for termination. See


            1
              Because we affirm the district court’s conclusion that Joseph failed to raise a genuine
     dispute of material fact about whether O&M’s firing decision was a pretext for discrimination, we
     need not and do not decide whether Joseph stated a prima facie case of discrimination.

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 1   Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996) (finding “complaints by clients” to

 2   be a “legitimate reason[] for firing an employee”). Nor does he allege that White or the client at

 3   New York Methodist Hospital harbored discriminatory intent. See Grillo v. N.Y.C. Transit Auth.,

 4   291 F.3d 231, 235 (2d Cir. 2002). Instead, he counters O&M’s explanation by arguing that the

 5   company’s decision was actually related to an earlier dispute he had with a co-worker, Mark Davis,

 6   who had allegedly made discriminatory remarks to Joseph in the past. See, e.g., Rose v. N.Y.C. Bd.

 7   of Educ., 257 F.3d 156, 162 (2d Cir. 2001) (noting that discriminatory statements came from

 8   plaintiff’s “immediate supervisor, who had enormous influence in the decision-making process”);

 9   Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 119 (2d Cir. 2002). But Davis did not supervise

10   Joseph, and Joseph proferred no evidence that Davis had any input into O&M’s decision to fire him.

11   Even assuming that the discriminatory motive of an employee without supervisory authority can

12   serve as the basis for a discriminatory termination claim, it cannot do so where, as here, no evidence

13   in the record links that employee to the employment decision. Because Joseph did not produce

14   evidence to rebut O&M’s legitimate, nondiscriminatory explanation for firing him, the district court

15   properly granted summary judgment on his Title VII and NYSHRL claims.

16          Joseph’s discrimination claim under the NYCHRL is evaluated separately from his state and

17   federal claims, and O&M is entitled to summary judgment only if it presents “evidence of its

18   legitimate, non-discriminatory motives” and “the record establishes as a matter of law that

19   discrimination played no role in its actions.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715

20   F.3d 102, 108-09, 110 n.8 (2d Cir. 2013) (alterations and internal quotation marks omitted). Given

21   the record in this case, Joseph’s claim also fails under this standard.




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1          We have reviewed the Appellant’s remaining arguments and find them to be without merit.

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

3                                                     FOR THE COURT:
4                                                     Catherine O’Hagan Wolfe, Clerk
5

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