22-702

Martinez v. City of Stamford

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.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 1st day of May, two thousand twenty-three.

PRESENT: Rosemary S. Pooler,

Richard C. Wesley,

Steven J. Menashi,

Circuit Judges.

____________________________________________

FELIX MARTINEZ,

Appellant-Plaintiff,

v. No. 22-702-cv

CITY OF STAMFORD,

Appellee-Defendant.

____________________________________________
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For Appellant: THOMAS W. BUCCI, Willinger, Willinger & 

Bucci, P.C., Shelton, CT. 

For Appellee: JONATHAN C. STERLING (James M. Sconzo, 

on the brief), Carlton Fields, Hartford, CT.

Appeal from a judgment of the United States District Court for the District 

of Connecticut (Hall, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered by the district court is 

AFFIRMED.

Plaintiff-Appellant Felix Martinez is a Hispanic member of the Stamford 

Police Department. In February 2020, Martinez filed this action against DefendantAppellee the City of Stamford, Connecticut, alleging that the department’s

decision to promote two non-Hispanic white police officers to Sergeant instead of 

him amounted to racial discrimination in violation of (1) Title VII of the Civil 

Rights Act of 1964, (2) Section 1983 of Title 42 of the United States Code, and (3) the 

Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a60(b)(1). The district court granted summary judgment to Stamford on all three 

claims. This appeal followed. We assume the parties’ familiarity with the 

underlying facts and procedural history.

I

“We review an order granting summary judgment de novo, drawing all 

factual inferences in favor of the non-moving party.” Viacom Int'l, Inc. v. YouTube, 

Inc., 676 F.3d 19, 30 (2d Cir. 2012). Martinez argues that the district court erred in 

granting summary judgment because Stamford’s arguments for not promoting 

him were pretextual and intended to “justify the race[] based discriminatory 

conduct” to which Martinez was subjected. Appellant’s Br. 25. We disagree.

Title VII prohibits employers from discriminating against any individual 

because of that individual’s race, color, religion, sex, or national origin. 42 U.S.C. 
3

§ 2000e-2(a)(1). The Supreme Court has established a three-step burden shifting 

framework for a plaintiff seeking to prove employment discrimination under Title 

VII via circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802-05 (1973). First, the plaintiff must establish a prima facie case of discrimination 

by showing that (1) he is “a member of a protected class,” (2) he “was qualified for 

the job for which [he] applied,” (3) he “was denied the job,” and (4) “the denial 

occurred under circumstances giving rise to an inference of discrimination on a 

basis forbidden by Title VII.” Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 

2000). After such a showing, the court adopts “a temporary ‘presumption’ of 

discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 

2015). In order to rebut the presumption, the employer must present “admissible 

evidence of a legitimate nondiscriminatory reason for its adverse employment 

decision.” Howley, 217 F.3d at 150. The reason must be “legitimate,” 

“nondiscriminatory,” “clear,” and “specific.” Bucalo v. Shelter Island Union Free Sch. 

Dist., 691 F.3d 119, 132 (2d Cir. 2012) (quoting Mandell v. County of Suffolk, 316 F.3d 

368, 381 (2d Cir. 2003)). Once the employer presents such a reason or reasons, the 

burden shifts back to the plaintiff to show that the proffered reasons amount to a 

pretext for unlawful discrimination. See McDonnell, 411 U.S. at 804. 

If the employer puts forth evidence of a legitimate nondiscriminatory reason 

for its employment decision, to survive summary judgment the plaintiff must offer 

admissible evidence showing “circumstances that would be sufficient to permit a 

rational finder of fact to infer that the employer’s employment decision was more 

likely than not based in whole or in part on discrimination.” Kirkland v. Cablevision 

Sys., 760 F.3d 223, 225 (2d Cir. 2014) (alteration omitted) (quoting Terry v. Ashcroft, 

336 F.3d 128, 138 (2d Cir. 2003)). “When a plaintiff seeks to prevent summary 

judgment on the strength of a discrepancy in qualifications ignored by an 

employer,” that discrepancy itself must “allow[] a reasonable trier of fact to not 

only conclude the employer’s explanation was pretextual, but that the pretext 

served to mask unlawful discrimination.” Byrnie v. Town of Cromwell Bd. of Educ., 

243 F.3d 93, 103 (2d Cir. 2001), superseded in part on other grounds by Fed. R. Civ. P. 

37(e). In such a case, “the plaintiff’s credentials would have to be so superior to the 
4

credentials of the person selected for the job that no reasonable person, in the 

exercise of impartial judgment, could have chosen the candidate selected over the 

plaintiff for the job in question.” Id. 

Stamford does not contest Martinez’s prima facie case. Instead, Stamford 

argues that it successfully presented legitimate nondiscriminatory reasons for 

promoting the two non-Hispanic white officers, James Comstock and Peter 

Malanga, thus satisfying its burden under the McDonnell-Douglas framework. We 

agree. 

Martinez concedes that Stamford had legitimate nondiscriminatory reasons 

for promoting Comstock. He argues only that his credentials were “objectively ... 

superior” to those of Malanga. Appellant’s Br. 27. Meanwhile, Stamford describes 

legitimate nondiscriminatory reasons for selecting both Comstock and Malanga. 

Stamford notes that both selected candidates had bachelor’s degrees, while

Martinez did not, and both scored higher than Martinez on the written portion of 

the promotional exam. Comstock had been selected as Police Officer of the Year 

and Malanga had been nominated for the award four times, but Martinez had been 

nominated only three times. Moreover, Malanga had already been serving as “de 

facto supervisor” prior to his promotion. App’x 336.

The district court correctly determined that Martinez’s credentials were not 

“so superior” that “no reasonable person, in the exercise of impartial judgment, 

could have chosen” Comstock or Malanga over him. Byrnie, 243 F.3d at 103

(quoting Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 280-81 

(5th Cir. 1999)). Martinez therefore attempts to identify other evidence on which a 

jury could conclude that Stamford’s reasons were pretextual. 

First, Martinez contends that the lack of Hispanic officers in leadership 

positions at the time he sought a promotion would allow a reasonable juror to infer 

discriminatory intent. Martinez observes that, at that time, only one Hispanic 

officer served at a rank of sergeant or higher. In response, Stamford notes that 

three Hispanic officers were promoted to sergeant in the 2018-19 period.

Regardless of this dispute, we previously have rejected the proposition that
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numbers alone serve as evidence of intentional discrimination. See Weinstock v. 

Columbia Univ., 224 F.3d 33, 46 (2d Cir. 2000) (rejecting, as “an unsupported 

hypothesis providing no foundation for the assertion that there was 

discrimination,” the suggestion that “raw data purportedly describing a pattern of 

under-representation and unequal opportunity ... leads to the conclusion that ... 

discrimination is in play”); Lomotey v. Conn. Dep’t of Transp., 355 F. App’x 478, 481

(2d Cir. 2009) (observing that statistical evidence, absent “further information on 

key considerations such as the racial composition of the qualified labor pool, 

cannot support an inference of discrimination”). We adhere to our precedent by

rejecting the same proposition here.

Second, Martinez claims that the department’s failure to adhere to 

affirmative action provisions of state law when promoting Malanga amounts to 

evidence of pretext. At the time Martinez sought a promotion, section 7-291a of 

the Connecticut General Statutes required the department to “make efforts to 

recruit, retain and promote minority police officers so that the racial and ethnic 

diversity of such unit is representative of such community.” Conn. Gen. Stat. § 7-

291a(a). According to the statute, such efforts “may include” attracting young 

people from the community to law enforcement careers and other community 

outreach, id. § 7-291a(a)(1)-(2), as well as the “implementation of policies 

providing that when there is a vacant position in such unit, such position shall be 

filled by hiring or promoting a minority candidate when the qualifications of such 

candidate exceed or are equal to that of any other candidate or candidates being 

considered for such position when such candidates are ranked on a promotion or 

examination register or list,” id. § 7-291a(a)(3). The department was directed to 

“develop and implement guidelines for the recruitment, retention and promotion 

of minority police officers” by no later than January 1, 2016. Conn. Gen. Stat. § 7-

291b. The statute does not specify what form such guidelines must take, so it is not 

clear whether the department might have adopted qualifying guidelines earlier, 
6

but the department did adopt a formal policy to comply with the statute in April 

2019.1

The statute does not require the department to follow any particular hiring 

policy; the policy on vacant positions mentioned in the statute is an example of a 

measure that a department “may” adopt. Conn. Gen. Stat. § 7-291a(a). The district 

court observed, however, that the department’s possible failure to adopt any 

guidelines by the statutory deadline could serve as some evidence of pretext. 

Martinez points to no evidence that the department missed the deadline out of 

animus, but even assuming the district court was correct, we agree with the district 

court that missing the guidelines deadline was not enough to defeat summary 

judgment. See Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (“[T]he Court did 

not categorically conclude that a prima facie case plus pretext evidence ‘permits’

a trier of fact to find that a plaintiff has satisfied his ultimate burden; it noted, 

instead, that such circumstances ‘may permit’ a trier of fact to conclude that a 

plaintiff had met his ultimate burden.”); Camblard v. Conn. Dep’t of Children & 

Families, No. 09-CV-0985, 2011 WL 3163581, at *5 (D. Conn. July 26, 2011) (“A 

plaintiff does not necessarily avoid summary judgment merely by establishing a 

prima facie case and presenting some evidence of pretext. ... Instead, a court must 

determine, based on the entire record, whether the plaintiff could ‘satisfy his 

“ultimate burden of persuading the trier of fact that the defendant intentionally 

discriminated against the plaintiff.”’”) (quoting Schnabel, 232 F.3d at 90). The 

department’s purported failure to adopt guidelines by a statutory deadline does 

not establish that Martinez’s race was a factor in the decision to promote other 

candidates. Because Martinez pointed to no evidence allowing such an inference, 

the district court did not err in granting summary judgment on Martinez’s Title 

VII claim.

1 Assistant Chief Thomas Wuennemann testified that the department introduced a policy 

addressing Conn. Gen. Stat. § 7-291a in April 2019, which was after Martinez’s February 2019 

interview. App’x 289. 
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II

We conclude that summary judgment was proper on Martinez’s § 1983

claim for substantially the same reasons. Once a plaintiff establishes that the 

employer acted “under color of state law,” the plaintiff’s “equal protection claim 

parallels his Title VII claim.” Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004). 

That is, “[t]he elements of one [claim] are generally the same as the elements of the 

other and the two must stand or fall together.” Id. Martinez offers no argument 

specific to his § 1983 claim that would lead to a different conclusion here.

In addition to his Title VII and § 1983 claims, Martinez alleges that Stamford 

violated his rights under the CFEPA. As the district court noted, both parties agree 

that courts apply the same analysis when evaluating Martinez’s claim under the 

CFEPA as when evaluating his claim under Title VII. See Stamford Mem. in 

Support of Mot. for Summary J. at 15-16, Martinez v. City of Stamford, No. 3:20-CV00174 (D. Conn. June 22, 2021), ECF. No. 31 (“The same analysis [under Title VII] 

applies under CFEPA.”); Martinez Opp’n at 33, Martinez v. City of Stamford, No. 

3:20-CV-00174 (D. Conn. July 21, 2021), ECF. No. 34 (“The same principles that 

apply to an analysis of the plaintiff’s cause of action under Title VII of the Civil 

Rights Act of 1964, as amended control his cause of action based on the alleged 

violations of the Connecticut Fair Employment Practices Act.”). Therefore, for the 

reasons already stated, the district court’s grant of summary judgment on 

Martinez’s CFEPA claim was proper.

* * *

We have considered Martinez’s remaining arguments, which we conclude 

are without merit. We affirm the judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court