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17‐1767   

Winsome Thelwell v. City of New York, 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 9th day of May, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR.,

    DENNIS JACOBS,

Circuit Judges,

MICHAEL P. SHEA,

    District Judge.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X

WINSOME THELWELL,   

Plaintiff‐Appellant,

  ‐v.‐            17‐1767

 

*     Judge Michael P. Shea, of the United States District Court for the District of

Connecticut, sitting by designation.
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CITY OF NEW YORK, LAURA EDIDIN, JOHN

DOE, said names being fictitious, the persons

intended being those who aided and abetted the

unlawful conduct of the named Defendants,

JANE DOE, said names being fictitious, the

persons intended being those who aided and

abetted the unlawful conduct of the named

Defendants,   

Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X

FOR APPELLANT: Samuel O. Maduegbuna (William W.

Cowles, Christopher Scharwath

(legal intern), on the brief),

Maduegbuna Cooper, LLP, New

York, NY.

FOR APPELLEES: Daniel Matza‐Brown (Richard

Dearing, Claude S. Platton, on the

brief), Assistant Corporation

Counsel, for Zachary W. Carter,

Corporation Counsel of the City of

New York, New York, NY.   

Appeal from an order and judgment of the United States District Court for

the Southern District of New York (Koeltl, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the order and judgment of the district court

be AFFIRMED.

Winsome Thelwell appeals from an order of the United States District

Court for the Southern District of New York (Koeltl, J.), which dismissed on

summary judgment her claims for employment discrimination and failure to
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promote under 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights

Law (“NYSHRL”), N.Y. Exec. L. § 296, et. seq., and the New York City Human

Rights Law (“NYCHRL”), Admin. Code of the City of N.Y., § 8‐107, et. seq., and a

judgment which dismissed her retaliation claim following a jury verdict.    We

assume the parties’ familiarity with the underlying facts, the procedural history,

and the issues presented for review.

Summary Judgment

Thelwell, who works for the New York City Civilian Complaint Review

Board (“CCRB”), alleges that she was passed over for promotion to Director of

Investigative Policy (“DIP”) and to Deputy Executive Director of Investigations

(“DEDI”) because she was stereotyped as an “angry black woman.”    Pl.’s Am.

Compl. ¶25.    She sued the City of New York, one named City employee, and

unnamed aiders and abettors (the “City”).    Thelwell contends that the district

court construed all disputed material facts in the City’s favor, and made multiple

errors of law.

We review the grant of summary judgment de novo, drawing all factual

inferences in favor of the non‐moving party.    Sousa v. Marquez, 702 F.3d 124, 127

(2d Cir. 2012).    Summary judgment is appropriate when “the record taken as a

whole could not lead a rational trier of fact to find for the non‐moving party.”   

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

At the summary judgment stage, failure to promote claims under 42 U.S.C.

§ 1981 and the NYSHRL are subject to the McDonnell Douglas burden‐shifting

analysis.    Aulicino v. New York City Depʹt of Homeless Servs., 580 F.3d 73, 80

(2d Cir. 2009).    The plaintiff initially bears the burden of establishing a prima

facie case.    McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).    If the

plaintiff does so, “the burden shifts to the defendant, which is required to offer a

legitimate, non‐discriminatory rationale for its actions.”    Terry v. Ashcroft, 336

F.3d 128, 138 (2d Cir. 2003).    If the defendant proffers such an explanation, the

burden shifts back.    “[T]o defeat summary judgment . . . the plaintiff’s admissible

evidence must show circumstances that would be sufficient to permit a rational
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finder of fact to infer that the defendant’s employment decision was more likely

than not based in whole or in part on discrimination.”    Id.   

“[C]ourts must analyze NYCHRL claims separately and independently

from any federal and state law claims, construing [its] provisions broadly in favor

of discrimination plaintiffs to the extent that such a construction is reasonably

possible.”    Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109

(2d Cir. 2013) (internal citations and quotation marks omitted).    Under the

NYCHRL, “the plaintiff must establish a prima facie case, and the defendant then

has the opportunity to offer legitimate reasons for its actions.”    Ya‐Chen Chen v.

City Univ. of New York, 805 F.3d 59, 75–76 (2d Cir. 2015).    Thus summary

judgment is appropriate “only if the record establishes as a matter of law that

discrimination play [ed] no role in its actions.”    Mihalik, 715 F.3d at 110.   

Contrary to Thelwell’s contention that the district court ignored Fed. R. Civ.

P. 56, the district court did not resolve any credibility determinations in favor of

the City.    The government offered legitimate non‐discrimnatory reasons for

Denis McCormick’s selection as DIP: he had higher clearance rates, strong

evaluations, and took on extra duties.    To avoid summary judgment, Thelwell

had to present evidence demonstrating that the employment decision was more

likely than not caused by racial discrimination.    Terry, 336 F.3d at 138.    Under

her theory of liability, Thelwell had to demonstrate both discriminatory animus

by defendant Laura Edidin, and that the animus was the proximate cause of Joan

Thompson’s decision to hire McCormick.    See Staub v. Proctor Hosp., 562 U.S.

411, 422 (2011).    Thelwell is unable to do so for three reasons.   

Thelwell argues that Edidin calling her angry is an indication that Edidin

stereotyped her and possessed racial animus.    But Thelwell provides nothing but

speculation to demonstrate that Edidin influenced Thompson, while Thompson

testified that Edidin only found out about McCormick’s new position after the

decision had been made to give him the title.    On this record, no reasonable juror

could find that Edidin’s supposed animus infected the decision.   

No procedural irregularities attended McCormick’s promotion to DIP.   

The position was created for McCormick, and McCormick was well‐qualified for
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it.    See Mauro v. S. New England Telecommunications, Inc., 208 F.3d 384, 387–88

(2d Cir. 2000) (finding no pretext where job was created for individual who

received the promotion and the individual was “well‐qualified for this type of

work”).    Further, Thompson testified that there was no obligation to advertise

the position because it was not an actual promotion, only an additional title, and

that the CCRB had followed the same procedure in the past when creating a

position for a specific individual. Thelwell presented no evidence to contest that

testimony.

Thelwell fails to demonstrate that she was denied the DEDI promotion by

reason of discrimination.    “To establish a prima facie case of discriminatory

failure to promote, a plaintiff must allege that she or he applied for a specific

position or positions and was rejected therefrom . . .”    Kinsella v. Rumsfeld, 320

F.3d 309, 314 (2d Cir. 2003) (internal quotation marks omitted).    Thelwell did not

apply for the DEDI position.    While “the rule is that a plaintiffʹs failure to apply

for a position is not a bar to relief when an employerʹs discriminatory practices

deter application or make application a futile endeavor,” Malarkey v. Texaco,

Inc., 983 F.2d 1204, 1213 (2d Cir. 1993), no reasonable person would interpret

Thelwell’s exchanges with Soler‐‐whom Thelwell never accused of racial

animus‐‐to have made application futile.    Thelwell offers no more than

speculation that Edidin influenced the decision to select McCormick to DEDI.   

Finally, Thelwell argues that McCormick’s experience and qualifications are

subjective factors which suggest pretext, but Thelwell does not dispute the

objective facts of McCormick’s performance.   

Therefore summary judgment was proper under both 42 U.S.C. § 1981 and

the NYSHRL.    Summary judgment was also proper under the more forgiving

NYCHRL standard, since “the record establishes as a matter of law that

discrimination play[ed] no role in its actions.” Mihalik, 715 F.3d at 110 n.8

(internal citation and quotation marks omitted, alteration in original).   

Jury Trial

Thelwell also argues that two evidentiary errors require that the judgment

rejecting her retaliation claim be vacated and the issue re‐tried.    “We review a
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district courtʹs evidentiary rulings for abuse of discretion,” Marcic v. Reinauer

Transp. Companies, 397 F.3d 120, 124 (2d Cir. 2005), and “we will not grant a new

trial unless . . . the introduction of inadmissible evidence was . . . so clearly

prejudicial to the outcome of the trial that we are convinced that the jury has

reached a seriously erroneous result or that the verdict is a miscarriage of justice,”

Luciano v. Olsten Corp., 110 F.3d 210, 217 (2d Cir. 1997) (internal citation and

quotation marks omitted).    “Prejudice is measured by assessing the error in light

of the record as a whole.”    Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1,

17 (2d Cir. 1996).   

Thelwell complains that the district court did not permit her to refresh the

recollection of her witness Graham Daw by showing him a complaint he had filed

against the City in a separate suit.    According to Thelwell, this error prevented

her from establishing Tracy Catapano‐Fox’s retaliatory animus toward her.   

Generally, when a lawyer wishes to use a writing to refresh a witness’

recollection, the lawyer must first establish that the witness lacks present

recollection of the issue.    See Bankers Tr. Co. v. Publicker Indus., Inc., 641 F.2d

1361, 1363‐64 (2d Cir. 1981).    Daw had no need for his memory to be refreshed.   

He clearly and unambiguously testified that nobody at CCRB had told him to stay

away from Thelwell.    Daw’s recollection ran contrary to how Thelwell

anticipated he would respond; but that was not grounds to refresh Daw’s

recollection.    Further, in her proffer, Thelwell told the district court that she

would not disclose the existence of Daw’s lawsuit to the jury.

Thelwell also argues that the district court abused its discretion by not

permitting the testimony of Richard Emery.    We disagree.    Thelwell’s reason for

offering Emery’s testimony changed the day before he was set to testify,

prejudicing the City.    Thelwell sought to elicit testimony that Catapano‐Fox had

leaked information.    But, Catapano‐Fox’s alleged leaking of information had

nothing to do with her credibility and was not inconsistent with her

determination that Thelwell violated CCRB’s policy prohibiting the destruction of

documents.    Any probative value in introducing Emery’s testimony on

Catapano‐Fox’s leaking would have been “substantially outweighed by a danger”

of “unfair prejudice, confusing the issues, [and] misleading the jury.” Fed. R.

Evid. 403.    Thelwell fails to demonstrate how this ruling so clearly prejudiced her
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so that “a substantial right of a party is affected,” or that the “juryʹs judgment

would be swayed in a material fashion by the error.”    Arlio v. Lively, 474 F.3d 46,

51 (2d Cir. 2007).   

Accordingly, the order and judgment of the district court is AFFIRMED.    

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK