17-784-cv Vaigasi v. Solow Management Corporation, et al. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY 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 Courthous e, 40 Foley Square, in the City of New York, on the 14 th day of September, two thousand eighteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges

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------------------ --------------- --------------- --------------- ------------- Pedio Vaigasi, Plaintiff-Appellant , v. No. 17-784-cv Solow Management Corporati on, Gregory Tumminia, in his individual and official capaci ty, Anthony Callicchio, in his individual and official capaci ty, Giovani Bernardino, in his individual and official cap acity, Ronan Kearney, in his individual and official capacit y, Solow East River Development Co. LLC, Stefan Solow, in his individual and official capacity, Sheldon Solow, in his individual and official capacity, Nelson Genao, in his individual and official capacity, Alexander Ferreras, in his individual a nd official capacity, Townhouse Co. LLC, George Dedivanovick, in his individual and official capacity, Phillip Wischerth, in his individual and official capacity, Solow Realty & Development Co., Lisa Garraputa, in her individual and official capacity, Defendants-Appellees, Solow Realty Co. LLC, Townhouse Co Solow Building Corporation,

### 2 Defendants.

------------------ --------------- --------------- --------------- ------------- For Appellant: Stewart Lee Karlin, Stewart Lee Karlin Law Group, PC, New York, New York. For Appellee Gregory Tumminia: Mark H. Stofsky, Brooklyn, New York. For all Appellees : Melissa D. Hill, Morgan, Lewis & Bockius LLP, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Berman, J. , Pitman, M.J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED. This is an employment discrimination lawsuit brought by Plaintiff Pedio Vaigasi (“Vaigasi”) against his former employer Solo w Management Corporation, Solow Realty & Development Co. LLC, and related entities (“Corpor ate Defendants”) and eleven of the Corporate Defendants’ employees and officers (collectivel y, “Defendants”). Vaigasi was employed as a handyman and Assistant Resident Manager (“ARM” ) at two Manhattan apartment buildings, 265 East 66th Street (the “66th Street Building”) and 525 East 72nd Street (the “72nd Street Building”). Vaigasi alleges that the Defendants discrimina ted against him because of his age, sex, religion, and disability and subjected him to a hos tile work environment in violation of Title VII of the Civil Rights Act (“Title VII”); the Age Discrimination in Employ ment Act (“ADEA”); the

Americans with Disabilities Act (“ADA”); 42 U.S.C. §§ 1981 and 1983; the New York State Human Rights Law (“NYSHRL”); and the New York City Human Rights Law (“NYCHRL”). Vaigasi also alleges that Defendants interfered wi th his rights under the Family and Medical Leave Act (“FMLA”) and retaliated against him because he exercised his ri ghts under the FMLA, the

### 3 ADA, and the ADEA. Vaigasi’s claims arise out of four incidents: (1) Va igasi’s transfer from the 66th Street Building to the 72nd Street Bu ilding in 2009 (“2009 Transfer”); (2) Vaigasi’s

reinstatement as the ARM at th e 66th Street Building in 2010 (“2010 Reinstatement”); (3) the

removal of a door “kickstand” at the 72nd Street Buildi ng; and (4) the termination of Vaigasi’s employment in January 2012.

We review de novo a district court’s grant of a motion to dismiss for failure to state a claim. Trs. of the Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). We review de novo a district court’s decision granting summary judgment. Fratello v. Archdiocese of N.Y. , 863 F.3d 190, 198 (2d Cir. 2017). We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. For substantially the same reasons stated in the district court’s March 24, 2014, February 16, 2016, and February 16, 2017 orders, we affirm the judgment of the district court. Vaigasi v. Solow Mgmt. Corp ., No. 11-CIV-5088(RMB)(HBP), 2014 WL 1259616 (S.D.N.Y. Mar. 24, 2014); Vaigasi v. Solow Mgmt. Corp. , No. 11-CIV-5088(RMB)(HBP), 2016 WL 616386 (S.D.N.Y. Feb. 16, 2016); Vaigasi v. Solow Mgmt. Corp. , No. 11-CIV-5088(RMB)(HBP), 2017 WL 945932 (S.D.N.Y. Feb. 16, 2017). Vaigasi does not plausibly allege that his gender was a basis fo r any of Defendants’ purported adverse employment actions, nor does he set forth factual circumstances from which

discrimination could be inferred. See Vega v. Hempstead Union Free Sch. Dist ., 801 F.3d 72, 83 (2d Cir. 2015). Even if it is true that Defendant Alexander Fe rreras (“Ferreras”) called him “sweetheart” and said he “go[es ] both ways,” Vaigasi does not alle ge that Ferreras was involved

in the decision to transfer hi m to the 72nd Street Building. Id. (holding that a plaintiff must

### 4 “allege facts that provide at least minimal support for the proposition that the employer was motivated by discriminatory intent” (i nternal quotation marks omitted)). Vaigasi does not plausibly state a claim fo r religious discrimination. Defendants’ purported threat that Vaigasi would be “written up” if he refused to work on Sunday, without more,

is insufficient to state a reli gious discrimination claim. Bowles v. N.Y.C. Transit Auth ., 285 F. App’x 812, 814 (2d Cir. 2008) (summary order) (noting that a mere “threat” of discipline that never “ripen[s] into any further action” is insufficient to demonstrate a materially adverse employment action); see also Tepperwien v. Entergy Nuclear Operations, Inc. , 663 F.3d 556, 571 (2d Cir. 2011). 1 Vaigasi fails to raise a triable issue of ag e discrimination. Assuming Vaigasi can make a prima facie case of age discrimination by providing ev idence that he was replaced by a younger employee or that a younger employee was given a promotion over him, Vaigasi’s NYSHRL claim

fails because he offered no eviden ce to rebut Defendants’ testimony that he was transferred to the 72nd Street Building to meet legitimate personnel needs. See Summa v. Hofstra Univ. , 708 F.3d 115, 125 (2d Cir. 2013). Vaigasi’s ADEA a nd NYSHRL claims premised on the 2010 Reinstatement also fail because Vaigasi does not cite evidence in the record demonstrating that he

1 Vaigasi argues that the district court erred in denying his request to amend his FMLA claims because, unlike his Title VII, ADA, ADEA, NYSHRL, and NYCHRL claims, Vaigasi was not given prior opportunities to cure hi s defective pleading. “We review a district court’s denial of leave to amend for abuse of discretion, unless the denial was based on an interpretation of law, such as futility, in which case we review the legal conclusion de novo .” Panther Partners Inc. v. Ikanos Commc’ns, Inc. , 681 F.3d 114, 119 (2d Cir. 2012). Vaigas i fails to demonstrate how he would amend the Third Amended Complaint to avoid dismissal. Hayden v. Cty. of Nassau , 180 F.3d 42, 53 (2d Cir. 1999) (noting that leave to amend must be denied “where the plaintiff is unable to demonstrate that he would be able to amend his complaint in a manner which would survive dismissal”). Therefore, the di strict court did not err in denyi ng him leave to amend yet again.

### 5 was treated differently than younger employees afte r he was reinstated as the ARM at the 66th Street Building. Id. ; Carlton v. Mystic Transp., Inc ., 202 F.3d 129, 134 (2d Cir. 2000). For the same reasons, Vaigasi’s NYCHRL age discrimina tion claim was properly dismissed on summary judgment. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 110 (2d Cir. 2013) (holding that although a pl aintiff “need only demonstrate by a preponderance of the evidence that [he] has been treated less well than other employees” because of his age, “[t]he plaintiff still bears the burden of showing that the conduct is cause d by a discriminatory mo tive” (internal quotation marks omitted)). Vaigasi also fails to raise a triable issue of disability discrimination. Assuming Vaigasi’s vague back, knee, shoulder, hand, and eye inju ries rendered him disa bled under the ADA, the NYSHRL, and the NYCHRL, Vaigasi’s proffered evidence would not permit a rational factfinder

to infer that Defendants had notice of his di sability, as is required to make out a prima facie case. See Noll v. Int’l Bus. Mach. Corp. , 787 F.3d 89, 94 (2d Cir. 2015). Finally, the district court acted within the bounds of its discretion in sanctioning Vaigasi under Federal Rules of Civil Procedure 26(g), 37(b)(2 ), and the court’s inhere nt authority. ‘“[A]ll litigants, including pro ses , have an obligation to comply with court orders,’ and failure to comply may result in sanctions, includi ng dismissal with prejudice.” Agiwal v. Mid Is land Mortg. Corp ., 555 F.3d 298, 302 (2d Cir. 2009) (quoting Minotti v. Lensink , 895 F.2d 100, 103 (2d Cir. 1990)). Despite the district court’s herculean efforts to guide Vaigasi through the discovery process, Vaigasi showed no interest in complying with the discovery rules or the di strict court’s orders. The district court repeatedly warned Vaigasi th at discovery was not a to ol to harass Defendants and cautioned him to limit his discovery requests to the facts of the case. Despite these

### 6 admonitions and the limited scope of Vaigasi’s claims, Vaigasi served voluminous discovery requests on Defendants, filed multiple frivolous in terlocutory appeals, and blatantly defied the district court’s orders. Moreover, each of the di strict court’s sanctions is directly responsive and proportional to Vaigasi’s failure to comply with the court’s orders and the discovery rules. The district court, therefore, did not abuse its discretion. We have considered Vaigasi’s remaining argum ents on appeal and find them to be without

merit. We AFFIRM the judgment of the district court.

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