21

- 2630 Rinaldi v. Mills


## 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 A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON A NY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 7 t h d a y of D e c e m b e r , two thousand twenty

- two

. 3 4 PRESENT: 5 PIERRE N. LEVAL , 6 REENA RAGGI , 7 MYRNA P É REZ , 8 Circuit Judges. 9

______________________________ ___ ____ ___ ___ __ 10 11 Peter Rinaldi , 12 13 Plaintiff

- Appellant , 14 15

v. No. 21

- 2630 16 17 Paul Mills, NICE, Christine Bonamarte, NICE 18 Systems, Inc., NICE

- Actimize, Richard Malish, 19 Barak Eilam, 20 21 Defendants

- Appellees , 22 23 NICE Ltd, Barak Eiliam , 24 25 Defendants

. 26 27

___________________________________________ 28 29 30 FOR PLAINTIFF

- APPELLANT: Peter Rinaldi, pro se, New York, NY. 31 322 FOR DEFENDANTS

- APPELLEE S : David W. Garland, Elizabeth Houghton, 1 Epstein Becker & Green, P.C., New York, 2 NY

. 3 4
Appeal from a judgment of the United States District Court for the Southern District of 5

New York ( Lorna G. Schofield
, J

. ) 6

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 7

DECREED that the judgment of the district court entered on October 20, 2021 is AFFIRMED

. 8

Plaintiff Peter Rinaldi
, proceeding pro se, appeals from an award of summary judgment to 9

Defendants on his age discrimination claims under the Age Discrimination in Employment Act of 10

1967 (“ADEA”), 1 the New York State Human Rights Law (“NYSHRL”), 2 and the New York 11
City Human Rights Law (“NYCHRL”), 3 and his nonpayment of incentive pay claim under the 12
New York Labor Law (“NYLL”)

. 4 He also appeal s from the district court’s judgment on the 13
pleadings dismissing his whistleblower claims under the 2010 Dodd

- Frank Wall Street Reform 14
and Consumer Protection Act (“Dodd

- Frank”), 5 the Sarbanes

- Oxley Act of 2002 (“Sarbanes

15
Oxley”), 6 and the NYLL, 7 and from various discovery and scheduling orders

. We assume the 16
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 17
appeal, which we reference only as necessary to explain our decision to affirm. 18

1 29 U.S.C. §§ 621
, et seq. 2 N.Y. Exec. Law §§ 290
, et seq. 3 N.Y.C. Admin. Code § § 8

- 101, et seq. 4 N.Y. Lab. Law §§ 191(1)(c) & 193.
5 15 U.S.C. § 78u

- 6

. 6 18 U.S.C. § 1514A

. 7 N.Y. Lab. Law § 740.3 I. Employment Discrimination Claims 1

We review de novo a district court ’ s award of summary judgment. See Garcia v. Hartford 2
Police Dep’t , 706 F.3d 120, 126

– 27 (2d Cir. 2013)

. Age discrimination claims under the ADEA 3

and NYSHRL are evaluated under the McDonnell Douglas burden

- shifting framework. See 4
Sutera v. Schering Corp ., 73 F.3d 13, 16 & n.2 (2d Cir. 1995) (citing McDonnell Douglas Corp. 5

v. Green
, 411 U.S. 792, 802

– 04 (1973) )

. Under that framework, after a plaintiff establishes a 6
prima facie case of discrimination by evidence minimally supporting an inference of 7

discrimination
, see Littlejohn v. City of New York , 795 F.3d 297, 307

– 308 (2d Cir. 2015), the 8

defendant must articulate a legitimate, non

- discriminatory reason for the plaintiff’s termination
, 9

see Sutera , 7 3 F.3d at 16

. If the defendant does so , the burden shifts back to the plaintiff to show 10

that his age was the “but

- for” cause of the adverse employment action. See McDonnell Douglas
, 11

411 U.S. at 802

– 04 ; Gorzynski v. JetBlue Airways Corp. , 596 F.3d 93, 106 (2d Cir. 2010)

. 12

Here, the parties do not dispute that Rinaldi established a prima fac i e case of age 13

discrimination
, nor that D efendants offered a legitimate, non

- discriminatory reason for terminating 14

Rina l di’s employment

— namely, dissatisfaction with his work performance. Accordingly, our 15
inquiry focuses on whether Rinaldi h as raised sufficient evidence upon which a reasonable 16

factfinder could conclude by a preponderance of the evidence that his age was a “ but

- for” cause 17

of his termination. See Delaney v. Bank of Am. Corp. , 766 F.3d 163, 168

– 69 (2d Cir. 2014)

. 18
Setting aside any unsupported and speculative claims, see Davis v. New York , 316 F.3d 93, 19
100 (2d Cir. 2002)
, Rinaldi’s strongest evidence of age discrimination is that his supervisor said 20
he was being fired for not “fitting in” or “catching on” like his younger colleague

. Without more, 21

this comment is not enough to prove age discrimination

. See Carlton v. Mystic Transp., Inc. , 202 224 F.3d 129, 136 (2d Cir. 2000) ( explaining that “evidence of one stray comment by itself is usually 1
not sufficient proof to show age discrimination”) . Further, th e evidence is particularly 2
unpersuasive here b ecause th e same supervisor also hired Rinaldi less than two years earlier

. S ee 3
Grady v. Affiliated Cent., Inc. , 130 F.3d 553, 560 (2d Cir. 1997) (“[W]hen the person who made 4
the decision to fire was the same person who made the decision to hire, it is difficult to impute to 5

her an invidious motivation that would be inconsistent with the decision to hire

. . . especially

. . . 6
when the firing has occurred only a short time after the hiring.”). 7

NYCHRL discrimination claims are a nalyzed separately from ADEA and NYSHRL 8

claims

. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 1 09 (2d Cir. 2013)

. 9

Under the NYCHRL, Rinaldi need only demonstrate “ any causal link between age bias and [his] 10
firing.” Velazco v. Columbus Citizens Found. , 778 F.3d 40 9, 411 (2d Cir. 2015)

. Given that 11
Rinaldi’s only evidence of such a causal link is his supervisor’s stray comment, no reasonable 12

factfinder could find that Rinaldi made this showing. See Mihalik , 715 F.3d at 1 1 2 ( finding that 13

a d istrict court may grant summary judgment if there is no genuine dispute as to any material fact 14
regarding plaintiff ’ s NYCHRL claim ). 15

II. Unpaid Compensation Claims 16
Rinaldi fails to show that he was entitled to incentive pay under NYLL § 191(1)(c) or 17
deducted wages under NYLL § 19 3

. Section 191(1)(c) provides, inter alia, that “[a] commission 18
salesperson shall be paid the wages . . . and all other monies earned or pa yable in accordance with 19
the agreed terms of employment .” Id. § 19 1(1)(c). Rinaldi provides no details about the 20
company’s sales commission plan or evidence that he met a specific sales goal or other target that 21
would have triggered the company’s obligation to pay under Section 191(1)(c)

. Section 193 225 concerns “deduction[s] from the wages of an employee

. ” Id. § 19 3. It is inapplicable here 1

because Rinaldi does not allege wage deductions. 2

III. Whistleblower Retaliation Claims 3

We review the district court’s grant of judgment on the pleadings de novo. Vega v. 4
Hempstead Union Free Sch. Dist. , 801 F.3d 72, 78 (2d Cir. 2015)

. Applying this standard, we 5

find that the district court did not err in dismissing Rinaldi’s retaliation claims under Dodd

- Frank 6

or Section 740 because Rinaldi does not plausibly allege that he qualifies for whistleblower 7
protections under either statute. 8 8
Rinaldi alleges that Defendants fired him in part because he spoke out about the company’s 9
allegedly defective software and that as a result, he was entitled to federal and state whistleblower 10
protections. With respect to his Dodd

- Frank claim
, Rinaldi does not plead , as is required, that his 11

report to the U.S. Securities and Exchange Commission “relat [ed] to a violation of the securities 12

law” or that the company was aware of the report before it fired him

. 15 U.S.C. § 78u

- 6(a)(6) 13
( defining “whistleblower” as “ any individual who provides

. . . information relating to a violation 14
of the securities laws to the Commission, in a manner established, by rule or regulation, by the 15

Commission ”). With respect to his Section 740 claim, Rinaldi failed to plead that the company’s 16
practices violated any l aw, rule
, or regulation or that the violation “ poses a substantial and specific 17
danger to the public health or safety

. ” N.Y. Lab. Law § 740(2)(a) ; see also Coyle v. Coll. of 18

Westchester, Inc. , 166 A.D.3d 722, 724, 87 N.Y.S.3d 242, 244 ( 2d Dep’t 2018) ( holding that, for 19
pleading purposes, a plaintiff must allege a specific danger to the public hea l th or safety). 20

8 Rinaldi conceded in the district court that he had not satisfied the exhaustion requirements for a Sarbanes

- Oxley claim.6 IV. Discovery and Scheduling Claims 1

We review a district court’s d iscovery and scheduling rulings for abuse of discretion. See 2

Raniola v. Bratt on , 243 F.3d 610, 628 (2d Cir. 2001) (discovery); see also Grochowski v. Phoenix 3

Constr. , 318 F.3d 80, 86 (2d Cir. 2003) (scheduling ). “A district court abuses its discretion when 4
(1) its decision rests on an error of law . . . or a clearly erroneous factual finding, or (2) its 5

decision

— though not necessarily the product of a legal error or a clearly erroneous factual 6
finding

— cannot be lo cated within the range of permissible decisions.” In re Fitch, Inc. , 330 F.3d 7
104, 108 (2d Cir. 2003) (quoting Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukr.
, 8
311 F.3d 488, 498 (2d Cir. 2002))

. 9

a. Discovery 10

The district court did not abuse its discretion by limiting Rinaldi’s requests for additional 11
depositions and extensions of time because he offered no concrete particulars about what he 12
expected to obtain by conducting additional discovery and how it would advance his case

. See 13

Nat ’l Union Fire Ins. Co. of Pittsburgh, P a. v. Stroh Co s. , 265 F.3d 97, 117 (2d Cir. 2001) (holding 14
that the district court did not abuse its discretion in denying a motion for additional discovery 15
where the moving party merely speculated about what could be di scovered ). 16

b. Scheduling 17

The district court also did not abuse its discretion by denying Rinaldi more time to oppose 18
summary judgment . The district court granted Rinaldi five extensions , totaling seven months
, 19

before warning him that he would not be gran ted any additional time . Moreover, after receiving 20
this warning, Rinaldi did not move for a sixth extension and subsequently filed his opposition 21
without objection. See Holmes v. Grubman , 568 F.3d 329, 33 4

– 3 5 (2d Cir. 2009) (holding that 227 the district cou rt did not abuse its discretion in denying plaintiff’s motion to amend where plaintiff 1
was previously granted leave to amend four times). 2

Rinaldi ’s claim that the district court establish ed a new erroneous legal standard in its order 3
denying him additional time to oppose summary judgment is similarly without merit

. T he district 4

court’s statement that it would “not rely on [Rinaldi’s] legal analysis or research in deciding the 5
[summary judgm ent] motion” is most logically read to mean that the district court would not rely 6
exclusively on Rinaldi’s legal research. Order Granting Mot

. for Extension of Time to File 7

Resp

. /Reply at 1, Rinaldi v. NICE Ltd. , No. 19

- cv

- 424 (S.D.N.Y. Sept. 4, 2020 ) , E CF No. 151. 8
Accordingly, the district court did not abuse its discretion in denying Rinaldi’s motion

. 9

V. Wrongful Discharge Law 10
Finally, we decline to consider the relevance of the “Just Cause ” provision of New York 11
City’s Wrongful Discharge L aw 9 to this case because Rinaldi did not raise this issue until appeal 12

and “i t is a well

- established general rule that an appellate court will not consider an issue raised 13
for the first time on appeal.” G reene v. United States , 13 F.3d 577, 586 (2d Cir. 1994)

. 14

We have cons idered all of Rinaldi’s remaining arguments and find them to be without 15
merit. Accordingly, we AFFIRM the judgment of the district court. 16

FOR THE COURT: 17 Catherine O ’ Hagan Wolfe, Clerk of Court 18

9 N.Y.C. Admin. Code § 20

- 1272(a)

.