    17-2234
    Goonewardena v. State of New York Workers’ Comp. Bd.


                          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 TO 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 11th day of October, two thousand nineteen.

    PRESENT:
                DENNIS JACOBS,
                ROBERT D. SACK,
                PETER W. HALL,
                      Circuit Judges.
    __________________________________________

    Bernard W. Goonewardena,

                              Plaintiff‐Appellant,
                     v.                                             17‐2234

    New York State Workers’ Compensation
    Board, Mr. Winston Farnum, Supervisor,

                      Defendants‐Appellees.
    __________________________________________
FOR PLAINTIFF‐APPELLANT:                                 Bernard W. Goonewardena, pro se,
                                                         New York, NY.

FOR DEFENDANTS‐APPELLEES:                                Barbara D. Underwood, Solicitor
                                                         General, Andrew W. Amend,
                                                         Senior Assistant Solicitor General,
                                                         David Lawrence III, Assistant
                                                         Solicitor General of Counsel, for
                                                         Letitia James, Attorney General for
                                                         the State of New York, New York,
                                                         NY.

       Appeal from a judgment of the United States District Court for the Southern

District of New York (Abrams, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

       Appellant Bernard Goonewardena, proceeding pro se, sued his former employer,

the New York Workers’ Compensation Board (“WCB”), and his former supervisor,

Winston Farnum, for employment discrimination under Title VII, the New York State

Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”),

and 42 U.S.C. § 1983.1 The district court entered judgment for the defendants following

a three‐day bench trial, and Goonewardena appeals. We assume the parties’ familiarity




1  Goonewardena does not challenge on appeal the district court’s dismissal of his
additional claims on the defendants’ motions to dismiss and for summary judgment.
Nor does he address the district court’s disposition of his retaliation claims following
trial. These claims are thus abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 93
(2d Cir. 1995) (pro se litigant abandons issue by failing to address it in his appellate brief).
with the underlying facts, the procedural history of the case, and the issues on appeal.

I.     Discrimination Claims

       “In reviewing a judgment entered after a bench trial,” we review the district

court’s findings of fact for clear error and its “conclusions of law, and its application of

the law to the facts, de novo.” Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012).

“Where there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Id. (quoting Anderson v. Bessemer City, 470 U.S. 564,

574 (1985) (internal quotation omitted)). Further, we may not “second‐guess the bench‐

trial court’s credibility assessments.” Id.

       Goonewardena largely challenges the district court’s finding that Farnum and

Farnum’s supervisor, Leonard Frasco, testified credibly. Because this Court may not

disturb the district court’s credibility assessments, this argument is unavailing. See Krist,

688 F.3d at 95. The remaining factual findings that Goonewardena contests on appeal

are all supported by the record.      For example, Farnum and Frasco both testified—

credibly, in the district court’s view—that Goonewardena’s work contained errors, that

they knew Goonewardena to have an antagonistic relationship with coworkers, and that

other South Asians worked at the WCB under Farnum’s supervision.                The court’s

conclusion that Goonewardena’s performance at the WCB was inadequate was also

supported by the trial testimony and the documentary evidence, including



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Goonewardena’s two probationary reports. Although there was contrary evidence on

some of these points in the record, the district court’s decision to choose the defendants’

view “cannot be clearly erroneous” because “there are two permissible views of the

evidence.” Id. (quoting Anderson, 470 U.S. at 574).

       Goonewardena also argues that the evidence showed that the decision to

terminate his employment was discriminatory and the proffered reasons for this

decision—i.e., his performance issues—were pretext for age and race discrimination. In

support of this claim, he notes that he was not given any formal warnings and that he

was replaced by employees outside his protected groups. The district court properly

concluded that these reasons were not sufficient to establish pretext. Failure to advise

an employee of performance issues may suggest that these issues were later asserted

pretextually. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 116 (2d

Cir. 2013) (explaining that a company’s failure to confront plaintiff with concerns

regarding her performance prior to her protected activity could support an inference that

these concerns were pretext for retaliation).       But here, Farnum testified that he

informally counselled Goonewardena regarding his performance and repeatedly

returned his work for corrections. Further, although Goonewardena was replaced by

employees outside his protected groups, there was no evidence that he was more

qualified than the replacements. See Holt v. KMI‐Cont’l, Inc., 95 F.3d 123, 130 (2d Cir.



                                            4
1996) (plaintiff’s “personal belief that she was the most qualified person for the various

positions” was not sufficient to establish pretext).

       Goonewardena’s argument that the district court should have focused on whether

his performance was actually inadequate, rather than how his employers perceived his

performance, is meritless. First, his employer’s view of his performance, and not the

accuracy of that view, is the proper focus of the pretext injury. See McPherson v. New

York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (explaining that, in a

discrimination case, the Court is “interested in what motivated the employer,” and is

“decidedly not interested in the truth of the allegations against plaintiff” (internal

quotation marks omitted)).      Second, the district court in any event found that the

evidence showed Goonewardena’s performance was deficient. As discussed above, the

court’s ruling on this point was not clearly erroneous. Goonewardena similarly argues

that the district court should have admitted, and given greater weight to, evidence

concerning his prior work history, which he contends would demonstrate his

competence. Because the accuracy of his employer’s perception of his performance is

not at issue, and because this evidence concerns Goonewardena’s ability to meet

expectations of different employers while completing different tasks years earlier,

evidence of Goonewardena’s prior work performance does not undermine the district

court’s decision. See id.; Rodriguez‐Cuervos v. Wal‐Mart Stores, Inc., 181 F.3d 15, 20 (1st



                                             5
Cir. 1999) (prior positive performance reviews, issued when the plaintiff was “working

in different capacities at different stores, under different supervisors with different

expectations,” did not establish that a subsequent negative evaluation was pretextual).

       Goonewardena’s argument that the presence of other South Asian employees does

not refute his discrimination claim is also unavailing. The district court identified the

diversity of the WCB’s staff as one of several reasons that Goonewardena failed to

demonstrate pretext.     Although this factor does not conclusively establish that an

employer’s action was not “discriminatorily motivated,” a court is “entitled to consider

the racial mix of the work force when trying to make the determination as to motivation.”

Furnco Const. Corp. v. Waters, 438 U.S. 567, 580 (1978).

       Goonewardena also argues that Farnum’s decision to inform him that his

employment was terminated in the main area of the office demonstrated his racial

animosity.   But Farnum testified that he complied with the WCB Human Resources

Office’s instructions regarding the manner in which he terminated Goonewardena’s

employment. In the absence of additional evidence of pretext, this incident does not

support Goonewardena’s claim that Farnum discriminated against him.                  And

Goonewardena’s additional allegations that other probationary employees who made

errors were not terminated, that less‐qualified applicants were hired before him, and that




                                              6
South Asians suffer discrimination in all New York State agency hiring, are not supported

by the trial record.

       Finally, to the extent that Goonewardena argues that his trial counsel was

ineffective, this claim is meritless because, “except when faced with the prospect of

imprisonment, a litigant has no legal right to counsel in civil cases”—and, by extension,

no right to effective counsel. Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 453 (2d

Cir. 2013).

II.    Discovery Sanctions

       “We review a district court’s decision on a motion for discovery sanctions for

abuse of discretion.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d

Cir. 2002). A district court has abused its discretion “if it based its ruling on an erroneous

view of the law or on a clearly erroneous assessment of the evidence.” Id. (quoting Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)).

       Goonewardena challenges the factual finding underlying the district court’s

decision to deny his motion for discovery sanctions, asserting that Farnum was not

credible as to the reasons failed to preserve certain documents. This argument fails

because, as discussed above, the district court’s assessment of Farnum’s testimony was

not clearly erroneous.




                                              7
III.   Motions

       Goonewardena moves in this Court for an extension of time to amend and

supplement his brief and reply brief, to introduce new evidence on appeal, to adjourn the

submission date, for oral argument, and for reconsideration of this Court’s prior denials

similar relief. This Court has already denied his previous requests for extensions of time

to amend and supplement his briefs and for oral argument. To the extent he repeats

requests for relief that this Court has previously denied, the law of the case doctrine

generally requires the Court to adhere to its prior rulings on an issue in the same case

“unless cogent and compelling reasons militate otherwise,” and such reasons are not

present here. Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (internal quotation marks

omitted). Further, Goonewardena has not shown that the new evidence that he seeks to

introduce into the record on appeal was erroneously or accidentally omitted from the

record, or that it is material to the case. See Fed. R. App. P. 10(e)(2); Leibowitz v. Cornell

Univ., 445 F.3d 586, 592 n.4 (2d Cir. 2006) (per curiam) (declining to supplement the record

in the absence of “evidence of an erroneous or accidental omission of material evidence”).

Finally, we see no basis to adjourn the submission date in light of our denial of

Goonewardena’s other requests.

       We have considered all of Goonewardena’s remaining arguments and find them

to be without merit. Accordingly, we AFFIRM the judgment of the district court and



                                              8
DENY the motions for an extension of time, to expand the record, to adjourn the

submission date, for oral argument, to hold this appeal in abeyance, and for

reconsideration.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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