14-3185-cv Chukwueze v. New York City Employees’ Retirement System



## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A 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 17 th day of March, two thousand sixteen.

PRESENT: PIERRE N. LEVAL, ROSEMARY S. POOLER, RICHARD C. WESLEY, Circuit Judges.

_____________________________________

Omar Chukwueze,

Plaintiff-Appellant
,

v. 14-3185-cv

NYCERS (New York City Employees’ Retirement System),

Defendant-Appellee

.

_____________________________________

FOR PLAINTIFF-APPELLANT: Omar Chukwueze, pro se, Brooklyn,

NY.

FOR DEFENDANTS-APPELLEES: Antonella Karlin, of Counsel, (Cecelia Chang, of Counsel, on the brief ), for Zachary W. Carter,2 Corporation Counsel of the City of New York, New York, NY.

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

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

.

Plaintiff-appellant Omar Chukwueze, procee ding pro se, appeals th e district court’s judgment, in which it dismissed in part a nd granted summary judg ment in favor of defendant-appellee New York City Employees’ Retir ement System with respect to his Title VII claims. We assume the parties’ familiarity with the underlying fact s, the procedural history of the case, and the issues on appeal.

We review the grant of a motion to dismiss and a motion for summary judgment de novo. Miller v. Wolpoff & Abramson, L.L.P. , 321 F.3d 292, 300 (2d Cir. 2003). The burden-shifting

framework in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), applies to Chukwueze’s claims for retaliation and wrongful termination. See Kirkland v. Cablevision Sys. , 760 F.3d 223, 225 (2d Cir. 2014).

To make a prima facie showing of retaliation,

a plaintiff must submit sufficient admissible ev idence to allow a trier of fact to find: (i) conduct by the plaintiff that is protected activity under Title VII; (ii) of which the employer was aware; (iii) followed by an adverse employment action of a nature that would deter a reasonable empl oyee from making or supporting a discrimination claim; (iv) that was causa lly connected to the protected activity.

Cox v. Onondaga Cty. Sheriff’s Dep’t , 760 F.3d 139, 145 (2d Cir. 2014). Informal complaints may constitute protected activity. Treglia v. Town of Manlius , 313 F.3d 713, 720 n.5 (2d Cir. 2002). However, for a complaint to constitute ac tivity protected by Title VII, it may not be so “generalized” that the employer “could not reasona bly have understood that [the plaintiff] was complaining of conduct prohi bited by Title VII.” Rojas v. Roman Catholic Diocese of Rochester

, 660 F.3d 98, 108 (2d Cir. 2011) (internal quotat ion marks omitted). Here, the admissible

evidence establishes that Chukw ueze complained only generally about his treatment. Moreover, Chukwueze has not proffered sufficient evidence for a jury to find that, but-for his complaints, he

would not have been terminated. See Univ. of Tex. Sw. Med. Ctr. v. Nassar , 133 S. Ct. 2517, 2533 (2013).

To make a prima facie showi ng of wrongful termination, “a pl aintiff must show that he (1) is a member of a protected class; (2) wa s performing his duties sa tisfactorily; (3) was discharged; and that (4) his discha rge occurred under circumstances giving rise to an inference of discrimination on the basis of his membership in the protected class.” Graham v. Long Island3 R.R. , 230 F.3d 34, 38 (2d Cir. 2000). If the plaintiff makes a prima facie case, “the burden shifts to the employer to articulate a legitimate, n on-discriminatory reason for the [plaintiff’s]

dismissal.” Id. “If such a reason is proffered, the burden sh ifts back to the plaintiff to prove that discrimination was the real reason for the employment action.” Id. Here, the uncontroverted

evidence shows that Chukwueze was fired for a legitimate non-discriminatory reason: he

submitted a false overtime sheet and was fired s hortly thereafter. Chukwueze has not submitted sufficient evidence to carry his bur den of providing that he was fi red for a discriminatory reason. 1

Finally, Chukwueze has abandoned any claims not raised in his brief. See LoSacco v. City of Middletown , 71 F.3d 88, 92-93 (2d Cir. 1995) (concluding that pro se appellant abandoned issue by failing to raise it in his appellate brief).

We have considered Chukwueze’s remaining argu ments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 The district court also cited in favor of the employer that Ga ddy had long been acquainted with Chukwueze’s religious beliefs, since Chukweze ha d on numerous occasions asked for religious holidays, citing in support a case relying on the sa me actor inference. We do not agree that this supported defendant’s position because, in the previous instances, Gaddy had expressed displeasure at plaintiff’ s requests for religious accommodations. Nonetheless, the other aspects of

the district court’s reason ing remain persuasive.