* The Honorable Richard J. Sullivan, of the United

States District Court for the Southern District of New York,

sitting by designation.

1

10-4603

Skalafuris v. City of N.Y., Dep’t of Corr.

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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 4th 4 day of November, two thousand eleven.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 RICHARD C. WESLEY,

9 Circuit Judge,

RICHARD J. SULLIVAN,* 10

11 District Judge.

12

13 - - - - - - - - - - - - - - - - - - - -X

14 DR. ANGELO J. SKALAFURIS, P.E., 

15

16 Plaintiff-Appellant,

17

18 -v.- 10-4603

19

20 CITY OF NEW YORK, DEPARTMENT OF

21 CORRECTION,

22

23 Defendant-Appellee.

24 - - - - - - - - - - - - - - - - - - - -X
2

1 FOR APPELLANT: Dr. Angelo J. Skalafuris, pro se, Mount

2 Vernon, NY.

3

4 FOR APPELLEE: Larry Sonnenshein and Andrew S. Wellin,

5 for Michael A. Cardozo, Corporation

6 Counsel of the City of New York. 

7

8 Appeal from a judgment of the United States District

9 Court for the Southern District of New York (Scheindlin,

10 J.).

11

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13 AND DECREED that the judgment of the district court be

14 AFFIRMED. 

15

16

17 Appellant Dr. Angelo J. Skalafuris, pro se, appeals

18 from the district court’s grant of summary judgment in favor

19 of Appellee City of New York, Department of Corrections

20 (“DOC”). We assume the parties’ familiarity with the

21 underlying facts, procedural history of the case, and issues

22 on appeal. 

23

24 We review the district court’s grant of summary

25 judgment de novo and conclude that Skalafuris’s arguments on

26 appeal are without merit substantially for the reasons

27 articulated by the district court. See Skalafuris v. City

28 of New York, Dep’t of Corr., 09-cv-5165, 2010 WL 4273286

29 (S.D.N.Y. Oct. 28, 2010).

30

31 Pursuant to New York State Human Rights Law (“NYHRL”),

32 N.Y. EXEC. LAW § 297(9) (McKinney 2010), and New York City

33 Human Rights Law (“CHRL”), N.Y.C. ADMIN. CODE § 8-502(a),

34 Skalafuris’s state and city claims were barred. See York v.

35 Ass’n of Bar of City of New York, 286 F.3d 122, 127 (2d Cir.

36 2002) (“[B]y the terms of the statute and code,

37 respectively, the NYHRL and CHRL claims, once brought before

38 the [New York State Department of Human Rights], may not be

39 brought again as a plenary action in another court.”).

40 Contrary to Skalafuris’s arguments concerning these

41 election-of-remedies limitations, a federal district court

42 must apply a state’s substantive law in adjudicating a state

43 law claim. See McGullam v. Cedar Graphics, Inc., 609 F.3d

44 70, 74 n.3 (2d Cir. 2010) (“[A] state law depriving its

45 courts of jurisdiction over a state law claim also operates

46 to divest a federal court of jurisdiction to decide the
2 See Abdu-Brisson, 239 F.3d at 466 (enumerating the

elements of a prima facie case under the Age Discrimination

in Employment Act of 1967, 29 U.S.C. § 621 et seq.).

3

1 claim.” (quoting Moodie v. Fed. Reserve Bank of N.Y., 58

2 F.3d 879, 884 (2d Cir. 1995))). 

3

4 Skalafuris contends that the district court usurped the

5 jury’s role as trier of fact. However, there were no

6 genuine issues of material fact to be tried. See Abdu7 Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.

8 2001) (“It is now beyond cavil that summary judgment may be

9 appropriate even in the fact-intensive context of

10 discrimination cases.”). The DOC concedes that Skalafuris

11 is a member of a protected class, was qualified for the

12 position to which he applied, and suffered an adverse

13 employment action; the only dispute is whether the

14 circumstances surrounding that action give rise to an

inference of age discrimination.2 15 They do not.

16

17 Skalafuris contends that the DOC violated various civil

18 service rules, but fails to demonstrate any connection

19 between these alleged violations and his allegations of age

20 discrimination.

21

22 Skalafuris did not raise the issue of the hired

23 candidate’s age to the district court. See Brennan v.

24 Metro. Opera Ass’n, Inc., 192 F.3d 310, 317 (2d Cir. 1999)

25 (leaving open the question of whether an age differential is

26 sufficient to establish a prima facie case of age

27 discrimination). His contention, raised for the first time

28 on appeal, that the chosen candidate was forty-four--

29 Skalafuris was seventy-six--is unsupported by any reference

30 to the record. 

31

32 Skalafuris argues that his credentials are far superior

33 to those of the candidate hired. See Byrnie v. Town of

34 Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)

35 (“When a plaintiff seeks to prevent summary judgment on the

36 strength of a discrepancy in qualifications ignored by an

37 employer . . . the plaintiff's credentials would have to be

38 so superior . . . that ‘no reasonable person, in the

39 exercise of impartial judgment, could have chosen the

40 candidate selected over the plaintiff for the job in

41 question.’”) (citations omitted). Notwithstanding the

42 impressive features of Skalafuris’s resume, it is not at all
4

1 clear that he was more qualified for the position to which

2 he applied--which required supervisory experience in

3 construction--than the candidate hired, a former

4 construction supervisor. 

5

6 The district court’s decision not to permit oral

7 argument was well within its discretion. See AD/SAT, Div.

8 of Skylight, Inc. v. Associated Press, 181 F.3d 216, 226 (2d

9 Cir. 1999). There is no constitutional right to oral

10 argument at summary judgment. See Green v. WCI Holdings

11 Corp., 136 F.3d 313, 316 (2d Cir. 1998) (per curiam) (“Every

12 circuit to consider the issue has determined that the

13 ‘hearing’ requirements of Rule 12 and Rule 56 do not mean

14 that an oral hearing is necessary, but only require that a

15 party be given the opportunity to present its views to the

16 court.”).

17

18 Finding no merit in Skalafuris’s remaining arguments,

19 we hereby AFFIRM the judgment of the district court. 

20

21

22 FOR THE COURT:

23 CATHERINE O’HAGAN WOLFE, CLERK

24