16-1140
Franklin v. Liberty Lines Transit, Inc., et al.

                    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
31st day of March, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         DEBRA ANN LIVINGSTON,
              Circuit Judges,
         LEWIS A. KAPLAN,
              District Judge.

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STEVEN T. FRANKLIN,
         Plaintiff-Appellant,

             -v.-                                                  16-1140

LIBERTY LINES TRANSIT, INC., JERRY D’AMORE,
THOMAS MURPHY, NEIL ERICKSON, DENNIS ZOTTOLI,
RICK ERICKKSON, KEVIN CLIFFORD,
         Defendants-Appellees.†
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
  Judge Lewis A. Kaplan, of the United States District Court for
the Southern District of New York, sitting by designation.
† The Clerk of Court is respectfully directed to amend the
official caption to conform to the above.
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FOR APPELLANT:                     NNENNA ONUA, McKinley Onua &
                                   Associates, PLLC, Brooklyn,
                                   NY.

FOR APPELLEES:                     PETER M. PANKEN (Donald S.
                                   Krueger, Daniel J. Green, on
                                   the brief), Epstein Becker &
                                   Green, P.C., New York, NY.

     Appeal from a judgment of the United States District Court
for the Southern District of New York (Román, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.

     Steven Franklin appeals from the district court’s grant of
summary judgment dismissing his race discrimination claims
against his former employer, Liberty Lines Transit, Inc.
(“Liberty”), and against various Liberty employees. We review
de novo a district court’s grant of summary judgment, see Sousa
v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012), and will affirm
only if, construing the evidence in the light most favorable
to the nonmoving party, “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law,” Fed. R. Civ. P. 56(a). “There is no genuine issue of
material fact where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party.”
Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 137
(2d Cir. 2010) (internal quotation marks and brackets omitted).
We assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for review.

     Franklin, an African-American, was hired in 2007 as a bus
driver by Liberty, a private bus company in Westchester County.
He was terminated in 2012 for theft of overtime and
falsification of company records. On November 27, 2011,
Franklin had been assigned to a route that scheduled the bus
to make its last stop at 8:20 p.m. and arrive at Liberty’s garage
in Yonkers at 8:40 p.m. On his “day card” -- a form on which
drivers are required to record their route times and reasons,
if any, for delays -- Franklin listed his time of departure from

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the last stop as 8:44 p.m. and his time of arrival at the garage
as 9:50 p.m. He requested one hour and ten minutes of overtime
due to “not enough time, sporadic traffic and elderly
passengers.” App’x at 653.

     Franklin’s overtime request was reviewed by Dennis
Zottoli, Liberty’s Labor Relations Manager. Video recordings
inspected by Zottoli showed that Franklin arrived at his last
stop at 8:25 p.m.; conversed with a passenger for fourteen
minutes; began his return to the garage at 8:45 p.m.; arrived
at the garage at 9:00 p.m.; and, after speaking with a fellow
Liberty employee for several minutes, exited the bus at 9:08
p.m. Zottoli found no indication of heavy traffic at the end
of Franklin’s route, and counted only three fares for senior
citizens or disabled passengers the entire day. Zottoli’s
review of Franklin’s day cards for four subsequent days revealed
that Franklin claimed overtime on all four days for reasons
identical to those on his November 27 day card.

     Liberty sought to discharge Franklin pursuant to its policy
(of which Franklin was aware) that “[t]heft of overtime [would]
result in termination of employment.” App’x at 859. Before
Franklin could be discharged, however, he was entitled to two
internal hearings followed by arbitration. At his first-level
hearing, Franklin stated that he could not recall why he wrote
on his day card that he arrived at the garage at 9:50 p.m. After
the hearing, he told his union that a Liberty dispatcher may
have been the one who wrote 9:50 p.m. At his second-level
hearing, Franklin admitted that he wrote 9:50 p.m., but claimed
that he meant to write 8:50 p.m. However, he did not explain
why he would have written 8:50 p.m. given that he recorded his
departure time from the final stop as 8:44 p.m., and the
scheduled travel time between the final stop and the garage was
twenty minutes.

     After the internal hearings, Liberty upheld Franklin’s
termination. Franklin challenged his termination in
arbitration (where he was represented by his personal
attorney). The arbitrator upheld Franklin’s termination,
finding that he was guilty of stealing overtime. The
arbitrator observed that Franklin’s claim that he intended to


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write 8:50 p.m. instead of 9:50 p.m. “beggars credulity.”
App’x at 185.

     After both the National Labor Relations Board and the Equal
Employment Opportunity Commission declined to pursue his case,
Franklin brought the present action, claiming that he was
terminated because of his race in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the New
York State Human Rights Law, N.Y. Exec. Law § 290 et seq; and
42 U.S.C. §§ 1981, 1983, 1985, and 1986. The district court
dismissed Franklin’s claims on summary judgment, ruling, inter
alia, that Franklin failed to establish an inference of
discrimination and, in any event, failed to show that Liberty’s
stated reason for terminating him -- the stealing of overtime
-- was pretextual.1

     We analyze Franklin’s discrimination claims under the
three-step, burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Brown
v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). To
survive a motion for summary judgment on these claims, a
plaintiff must first establish a prima facie case of
discrimination. Ruiz v. County of Rockland, 609 F.3d 486, 491
(2d Cir. 2010). “Once a plaintiff meets this initial burden,
the burden then shifts to the defendant to offer a legitimate
non-discriminatory reason for the termination. If defendant
does so, the burden returns to the plaintiff to show that the
real reason for plaintiff’s termination was his race . . . .”
Id. at 492 (citation omitted). To establish pretext, “[t]he
plaintiff must produce not simply some evidence, but sufficient
evidence to support a rational finding that the . . . reasons
proffered by the defendant were false, and that more likely than
not discrimination was the real reason for the employment
action.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000) (internal quotation marks and brackets omitted).


1
  The district court also dismissed Franklin’s claim under 42
U.S.C. § 1983 due to a lack of state action, and dismissed his
claims under 42 U.S.C. §§ 1985 and 1986 due to a lack of evidence
of a conspiracy to engage in unlawful discrimination. Franklin
does not contest those rulings on appeal.
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     Having reviewed the record de novo in light of the foregoing
principles of law, we conclude that summary judgment was
warranted. Assuming without deciding that Franklin
established a prima facie case of discrimination, we hold that
he has not produced sufficient evidence to support a rational
finding that Liberty’s proffered reason for discharging him
was, more likely than not, a pretext for race discrimination.

     As an initial matter, Franklin’s theft of overtime has
already been determined. Indeed, it was the central issue in
an arbitration proceeding at which he had a full and fair
opportunity to litigate. He is thus collaterally estopped from
challenging the fact of his theft, see Boguslavsky v. Kaplan,
159 F.3d 715, 720 (2d Cir. 1998), and he does not contend
otherwise.

     Rather, Franklin argues that a jury could find pretext in
light of Liberty’s purportedly preferential treatment of
similarly situated white employees. That argument does not
withstand scrutiny. The comparators he offers are four bus
drivers who were retained despite requesting between seven and
seventeen minutes of questionable or potentially unnecessary
overtime. Unlike Franklin, however, they all provided
credible justifications for their delays and overtime requests,
and none was found to have falsified the times on a day card.
The comparators therefore were insufficiently similar in all
material respects to permit a reasonable jury to draw an
inference of pretext. Moreover, African-American bus drivers
who -- like the comparators, and unlike Franklin -- provided
credible explanations for their questionable or potentially
unnecessary overtime requests were allowed to keep their jobs.
Liberty’s retention of these individuals and the fact that a
plurality of its bus drivers were African-American further
dispel an inference of discrimination.

     Franklin also points to Liberty’s extensive investigation
into his misconduct and its termination of an African-American
bus driver named Joseph Palmer as evidence of pretext. Neither
fact supports his contention. First, Liberty investigated
white bus drivers as well -- and even assigned supervisors to
follow two of the comparators. Second, Palmer was terminated
because he physically assaulted a passenger. Franklin cites

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no example of a white bus driver who was retained despite
engaging in similar conduct.

     Accordingly, we hereby AFFIRM the judgment of the district
court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




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