    12-2476
    Obinabo v. Radioshack Corp.


                         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 “SUMMARY 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 7th day of June, two thousand thirteen.

    PRESENT:
              PETER W. HALL,
              GERARD E. LYNCH,
                   Circuit Judges,
              PAUL A. ENGELMAYER,*
                   District Judge.
    _____________________________________

    Uchenna Obinabo,

                            Plaintiff-Appellant,

                    v.                                                  12-2476

    Radioshack Corp,

                            Defendant-Appellee.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                       Uchenna Obinabo, pro se, Rocky Hill, CT.

    FOR DEFENDANT-APPELLEE:                        Holly L. Cini, Jackson Lewis LLP, Hartford, CT.




            *
          Hon. Paul A. Engelmayer, of the United States District Court for the Southern District of
    New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the District of

Connecticut (Kravitz, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       In this diversity action, 28 U.S.C. § 1332, Appellant Uchenna Obinabo, proceeding pro

se, appeals the district court’s judgment in favor of Appellee RadioShack Corporation following

a bench trial on his state law employment discrimination and retaliation claims. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

       When a district court sits as a fact-finder at trial, we will reverse its findings of fact only

for clear error, giving due regard to the district court’s opportunity to judge witness credibility.

See Fed. R. Civ. P. 52(a)(6); Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010).

When there are two competing permissible interferences that may be drawn from witness

testimony or evidence, the district court’s decision between those alternatives cannot be clearly

erroneous. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 213 (2d Cir. 2001).

        Connecticut law prohibits employers from discharging an employee based on that

employee’s sexual orientation or opposition to any discriminatory employment practice. See

C.G.S. §§ 46a-81c and 46a-60(a)(4). Connecticut courts look to federal precedent concerning

employment discrimination for guidance in enforcing Connecticut anti-discrimination statutes.

See Levy v. Comm’n on Human Rights and Opportunities, 236 Conn. 96, 103 (1996). In an

employment discrimination case, the plaintiff bears the initial burden of establishing a prima

facie case of discrimination, which the defendant must then rebut by articulating a legitimate,



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non-discriminatory reason for terminating the plaintiff. See Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252-53 (1981). If the defendant does rebut the plaintiff’s prima facie

case, the presumption of discrimination is itself rebutted and “drops from the case.” See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal quotation marks omitted);

Burdine, 450 U.S. at 255 (noting that the plaintiff retains the burden of persuasion). The trier of

fact must then determine whether the plaintiff has proven that the proffered reason is pretextual

and that the defendant intentionally discriminated against him. See Craine v. Trinity Coll., 259

Conn. 625, 637 (2002).

       In order to establish a prima facie case of retaliation under either federal or Connecticut

law, a plaintiff must show that he participated in protected activity, that his participation was

known to his employer, and that he suffered a materially adverse employment action that was

causally connected to the protected activity. If plaintiff makes out a prima facie case, the trier of

fact must analyze the retaliation claim following a burden-shifting standard similar to that

described above. See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552-53 (2d Cir. 2010); Jute v.

Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). When considering “stray

remarks” as evidence of discrimination, courts consider who made the remark, when the remark

was made in relation to the employment decision, the remark’s content, and the context in which

the remark was made. See Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010).

       As an initial matter, although the district court stated at the end of trial that Appellant was

likely “barking up the wrong tree” with respect to his failure to promote claim and encouraged

him to reconsider that claim, the court did not force Appellant to withdraw the claim and

indicated its willingness to review the claim if it was pursued. Ultimately, Appellant’s counsel

voluntarily withdrew the failure to promote claim after reviewing the evidence presented at trial.

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Appellant cannot now object to its dismissal. Furthermore, Appellant did not object to

Appellee’s motion in limine seeking to preclude certain allegations that were remote in time.

Appellant’s objection, therefore, is not timely raised on appeal. See Fed. R. Evid. 103; United

States v. Yu-Leung, 51 F.3d 1116, 1120 (2d Cir. 1995).

       Moreover, an independent review of the record and relevant case law reveals that the

district court did not err in determining either that Appellant had the burden of demonstrating

discrimination or retaliation or that he failed to meet this burden. Although there were minor

inconsistencies in the testimony of several of Appellee’s employees or former employees, these

inconsistencies were generally immaterial and were overshadowed by the overwhelming

consistency among employee accounts. The district court’s decision to credit this consistent

testimony was not clearly erroneous. To the extent that Appellant indicates that he has presented

evidence of discriminatory or retaliatory animus aside from two stray comments made by

supervisors not responsible for his termination, except for the inconsistent testimony noted

above, he has not identified any such evidence.

       We have considered Appellant’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

       Appellant’s motion to strike portions of Appellee’s brief referencing a pre-trial telephone

conference is DENIED, as Appellant was represented by counsel at the conference and was

informed of and did not object to Appellee’s intent to include the transcript of the conference in

its appendix.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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