1 15-3230-cv Brenner v. City of New York Dep’t of Educ. 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 PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 8 th day of September, two thousand sixteen. PRESENT: REENA RAGGI, DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges

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---------------------------- ---------------------------- --------------- LAWRENCE BRENNER, Plaintiff-Appellant , v. No. 15-3230-cv
CITY OF NEW YORK DEPARTMENT OF EDUCATION, ANTONIO K’TO RI, individually and in his official capacities, Defendants-Appellees

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---------------------------- ---------------------------- --------------- APPEARING FOR APPELLANT: THOMAS RI COTTA, White, Ricotta & Marks, P.C., Long Island City, New York. APPEARING FOR APPELLEES: BENJAMIN WELIKSON, Assistant Corporation Counsel (Ric hard Dearing, Deborah A. Brenner, Of Counsel, on the brief ), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.2 Appeal from a judgment of the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on September 18, 2015, is AFFIRMED. Plaintiff Lawrence Brenner appeals from an award of summary judgment in favor of defendants New York City Department of Education and Principa l Antonio K’Tori on Brenner’s claims that he was subjected to a hostile work environmen t and terminated in violation of Title VII of the Ci vil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and 42 U.S.C. § 1983. “We review an award of summary judgment de novo, construing the evidence in the light most favorable to th e nonmoving party and drawing all reasonable inferences in his favor.” McElwee v. Cty. of Orange, 700 F.3d 63 5, 640 (2d Cir. 2012). We assume the parties’ familiari ty with the facts and record of prior proceedings, which we reference only as necessary to explain our de cision to affirm largel y for the reasons set forth by the district court. See Brenner v. Ci ty of New York Dep’t of Educ., 132 F. Supp. 3d 407, 416–23 (E.D.N.Y. 2015). 1. Termination We review Title VII and § 1983 claims of employment discrimination under the burden-shifting framework set forth in McDo nnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See id. at 802–05 (requ iring (1) plaintiff to make out prima facie case of3 discrimination, whereupon (2) burden shifts to employer to advance legitimate, nondiscriminatory reason for adverse employment action, at which point (3) burden shifts back to plaintiff to a dduce admissible evidence sufficient for rational fa ctfinder to infer that proffered reason is pretext for impermissible motivation); accord Vi venzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (Title VII); Anni s v. Cty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998) (§ 1983). The same framework applies to ADEA claims, except that, at the third step, a plaintiff must demonstrate th at the discriminatory motive was a but-for cause of the adverse employment action, rather than merely a motivating factor. See Gorzynski v. Je tBlue Airways Corp., 596 F.3d 93, 105–06 (2d Cir. 2010). Defendants do not contest that Bre nner made out a prima facie case of discrimination, and Brenner does not contest that defendants advanc ed a legitimate, nondiscriminatory reason for his termination, namely that, during the relevant period, Brenner did not satisfactorily perform his educa tional duties as a special education teacher. [P]laintiff received [1] at least nine unsatisfactory classroom observations, including several fro m administrators other than K’Tori; [2] four unsatisfactor y year-end ratings; and [3] an unsatisfactory evaluation by an independent consultant in the last year prior to his termina tion. These negative performance evaluations are consistent in de scribing an educator who failed to live up to the expectations of his supervisors and peers in his role as a special education teacher, in particular in the areas of differentiation, lesson planning , and classroom management. Brenner v. City of New York Dep’t of E duc., 132 F. Supp. 3d at 417–18. Brenner challenges only the district court’s conclusion th at he failed to addu ce sufficient evidence to permit finding that this reason was a pr etext for prohibited discrimination.4 The argument fails. As the district c ourt correctly observed, a plaintiff who is terminated “after a decision, based on s ubstantial evidence, of an undisputedly independent, neutral, and un biased adjudicator [who] ha d the power to prevent the termination” bears a heavy burden to demonstr ate pretext, as such an evaluation “is highly probative of the absence of disc riminatory intent in that te rmination.” Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 11 9 (2d Cir. 2002). In such circ umstances, a plaintiff must “present strong evidence that th e decision was wrong as a matter of fact . . . or that the impartiality of the proceeding was somehow compromised.” Id . Brenner argues that the independent decision was wrong or infected by K’Tori’s negative evaluations. But the argument is conclusory, which is insufficient to carry Bren ner’s step-three burden under either a but-for or motivating-factor standa rd where, as the district court detailed, substantial evidence supported the independent adjudicator’s finding. See Smith v. Am. Express Co., 853 F.2d 151, 155 (2d Cir. 1988). Accordingly, for the reasons stated by the district court, defendants were entitled to summary judgment on Brenner’s Title VI I, § 1983, and ADEA challenges to his termination. 2. Hostile Work Environment To defeat summary judgment on a hostile-work-environment claim, a plaintiff must produce evidence that “the work place was permeated with di scriminatory intimidation, ridicule, and insult, that was sufficiently severe or pervasive to alter the conditions of the victim’s employment.” Patterson v. Cty. of Oneida, 375 F.3d 206 , 227 (2d Cir. 2004) (alterations and internal quota tion marks omitted). To carry th is burden, Brenner relies on5 a handful of K’Tori’s statements that he su bmits express negative opinions of older, white, Jewish teachers. Brenner further points to his removal from teaching duties and reassignment to a “closet” after termination pr oceedings began. Appellant’s Br. 25. The stray comments attributed to K’Tori do not amount to the “steady barrage of opprobrious . . . comments” sufficient to a lter the conditions of Br enner’s employment. Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)). As for Brenner’s confinement to a “closet,” we conclude, as the district court did, that Bre nner failed to demonstrat e that this action was other than standard procedure for employees in termination pr oceedings or that it bore any connection to discriminatory animus. See Br own v. Henderson, 25 7 F.3d 246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment at work . . . through subjection to a hostile environment . . . is actionable under Title VII only when it occurs because of an employee’s . . . protected characteristic.”). Accordingly, summary judgment was correct ly awarded to defendants on Brenner’s hostile work environment claim. 3. Conclusion We have considered Brenner’s remaini ng arguments and conclude that they are without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court