1 17-622-cv
Carvalho v. Associated Brands Inc.

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 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 28 th day of December, tw o thousand seventeen.

PRESENT: B ARRINGTON D. P ARKER

, G ERARD E. L YNCH

, C HRISTOPHER F. D RONEY

, Circuit Judges

.

---------------------------- ---------------------------- -------------- A DAM C ARVALHO

, Plaintiff-Appellant

,

v. No. 17-622-cv

A SSOCIATED B RANDS I NC

., Defendant-Appellee

.

---------------------------- ---------------------------- --------------

FOR PLAINTIFF-APPELLANT: Adam Carvalho, pro se , Lyndonville,

NY.

FOR DEFENDANT-APPELLEE: Joshua I. Feinstein, Hodgson Russ LLP, Buffalo, NY.2 Appeal from a February 1, 2017 judgment of the United States District Court for the Western District of New York (Telesca, J. ; Roemer, M.J. ).

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

.

Plaintiff-Appellant Adam Carvalho, proceeding pro se , appeals from a judgment of
the United States District Court for the Western District of New York (Telesca, J. ) adopting in full a Magistrate Judge’s report and recommendation (Roemer, M.J. ) and granting summary judgment to Carvalho’s former em ployer Defendant-Appellee Associated Brands Inc. (“Associated”) on Carvalho’s claims unde r the Americans with Disabilities Act (“ADA”). Carvalho worked as a “packer” at Associated, which
manufactures custom-branded food products. Carvalho c ontends that Associated discriminated against him base d on his anxiety disorder by denying him a promotion to a machine-operator position. 1 He also argues that Associ ated retaliated against him by treating a day of his Family and Medical L eave Act (“FMLA”) leave as an unexcused absence after he complained about discrimi natory comments and actions from coworkers. We assume the parties’ familiari ty with the underlying facts, the procedural history of the case, and the issues on appeal , which we reference only as necessary to explain our
decision to affirm. 2

“We review the district cour t’s grant of summary judgment de novo , applying the same standards that govern the district court’s consideration of the motion.” Summa v. Hofstra Univ. , 708 F.3d 115, 123 (2d Cir. 2013). In doing so, “[w]e resolve all ambiguities and draw all reasonabl e inferences in the light mo st favorable” to Carvalho as the non-moving party. Id. “Summary judgment is appropriate where there are no genuine disputes concerning an y material facts, and where th e moving party is entitled to judgment as a matter of law.” Id.

I. Denial of Promotion

“Claims alleging discrimination under th e ADA are subject to the burden-shifting analysis established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).” Davis

1 We liberally construe Carvalho’s pro se complaint and brief on appeal to raise the strongest arguments they suggest. See Bertin v. United States , 478 F.3d 489, 491 (2d Cir. 2007).

2 Carvalho raised several other claims and arguments be fore the district court, including a hostile work environment claim, a separate denial-of-promotion cl aim, and additional allega tions of retaliation. Because he does not raise these issues on appeal, they are abandoned. See Terry v. Inc. Vill. of Patchogue

, 826 F.3d 631, 632–33 (2d Cir. 2016); Smith v. Fischer , 803 F.3d 124, 126 n.1 (2d Cir. 2015) (per curiam).3 v. N.Y.C. Dep’t of Educ. , 804 F.3d 231, 235 (2d Cir. 2015) (per curiam). Under that
framework:

once a plaintiff produces minimal evid entiary support fo r the claim of discriminatory motivation, the burden of production shifts to the employer to articulate a non-discriminatory reason for the adverse employment action. But once the employer has set forth its non-discriminatory justification, the plaintiff must then produce evidence capable of carrying the burden of persuasion that the employer’s action was at least in part motivated by
discrimination.

Id. When a plaintiff sets forth a prima faci e case of discriminatory motive (which we assume Carvalho has), and the defendant satis fies its burden of pro duction with admissible evidence showing a legitimate, non-discriminato ry justification (whi ch Associated has), “[t]he plaintiff must produce not simply some evidence, but sufficien t evidence to support a rational finding that the legitimate, non -discriminatory reasons proffered by the defendant were false, and that more likely th an not discrimination was the real reason for the employment action.” Weinstock v. Columbia Univ. , 224 F.3d 33, 42 (2d Cir. 2000) (alterations and internal qu otation marks omitted).

As to at least one of Associated’s proffe red non-discriminatory reasons for denying Carvalho the promotion––its d ecision not to fill the position to which Carvalho applied, a “bouillon machine operator”––Carvalho has failed to produce ev idence supporting a rational finding of pretext. It is undisputed that Associat ed, after accepting applications from four individuals for the position, made a business decision that the position was no longer necessary and elected not to fill it. “Although cour ts must be careful not to second-guess an employer’s business judgment that it makes in good faith, [a] plaintiff must be allowed to show that h[is] employer’s asserted reasons . . . were a pretext and that the real reason was h[is] [disability].” Gallo v. Prudential Reside ntial Servs., Ltd. P’ship

, 22 F.3d 1219, 1226 (2d Cir. 1 994). Carvalho’s claim of pretext is based on mere speculation. He provides no evidence that Associated’s business judgment to not fill the position––and in doing so, also reject other candidates––was mere pretext for its purported actual motivation: discriminating agains t Carvalho because of his disability. 3 Therefore, we affirm the district court’s decision to gr ant summary judgment in favor of Associated on Carvalho’s ADA denial-of-promotion claim.

3 Carvalho points to a September 5, 2013 letter he recei ved from an Associated human resource coordinator stating that the company had chosen to pursue anothe r candidate for the position who was better qualified.
But there is no evidence in the record that this letter was either inaccura te at the time (before Associated elected to not fill the position) or a pretextual excu se to exclude Carvalho from consideration because of his disability.4 II. Retaliation

In order to establish a pr ima facie case of retaliation under the ADA, Ca rvalho must show, inter alia , that Associated “took adverse employment action against him.” See Treglia v. Town of Manlius , 313 F.3d 713, 719 (2d Cir. 2002) (explaining four elements of retaliation claim). Although “adverse employment acti ons are not limited to pecuniary emoluments,” they must rise to the level of “materially adverse ch ange[s] in the terms, privileges, duration[, or] conditions of employment.” Id. at 720 (internal quotation marks omitted). Carvalho contends that Associated ’s initial treatment of his August 16, 2013 absence as unexcused for FMLA purposes, befo re later correcting the absence as excused, rises to the level of an adverse employment action. We disagree. Just weeks after Carvalho submitted his complaints to the hum an resources department, an Associated
human resources director undertook an inves tigation into Carvalho’s claims and changed
the unexcused absence to excused “as a sign of good faith and giving Carvalho the benefit of any doubts.” Suppl. App. 158. This temporary mistaken designation of Carvalho’s
leave as unexcused is not a “materially adverse change in the terms, privileges, duration[, or] conditions” of his employment. Treglia , 313 F.3d at 720.

Independently, Carvalho’s retaliation clai m also fails on the basis of lack of
causation. See id. at 719 (explaining that plainti ff alleging ADA retaliation claim must
also show that “a causal conne ction exists between the a lleged adverse action and the protected activity”). Although Ca rvalho’s claim on appeal is less than clear, it appears that his retaliation claim is premised on, as protected activity, his calling Associated’s ethics hotline to complain about discriminati on in early November 2013. That protected activity occurred three months after the alleged adverse employment action––Associated (temporarily) treating his absence of August 16, 2013 as unexcused.

We therefore affirm the district court’ s decision awarding summary judgment to
Associated on Carvalho’s retaliation claim.

***

We have considered Carvalho’s remaini ng arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.

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