* 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

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 4 th** **day of November, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **RICHARD C. WESLEY,** 8 **Circuit Judge ,**  9 **RICHARD J. SULLIVAN,** ***** 10 **District Judge**

**.** 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **DR. ANGELO J. SKALAFURIS, P.E.,** 14 15 **Plaintiff-Appellant ,**  16 17 **-v.- 10-4603** 18 19 **CITY OF NEW YORK, DEPARTMENT OF** 20 **CORRECTION,** 21 22 **Defendant-Appellee**

**.** 23 - - - - - - - - - - - - - - - - - - - -X 242 **FOR APPELLANT:** Dr. Angelo J. Skalafuris, pro se , Mount 1 Vernon, NY. 2 3 **FOR APPELLEE:** Larry Sonnenshein and Andrew S. Wellin, 4 forMichael A. Cardozo, Corporation 5 Counsel of the City of New York. 6 7 Appeal from a judgment of the United States District 8 Court for the Southern District of New York (Scheindlin, 9 J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the judgment of the district court be 13
**AFFIRMED**

. 14 15 16 Appellant Dr. Angelo J. Skalafuris, pro se , appeals 17 from the district court’s grant of summary judgment in favor 18 of Appellee City of New York, Department of Corrections 19 (“DOC”). We assume the parties’ familiarity with the 20 underlying facts, procedural history of the case, and issues 21 on appeal. 22 23 We review the district court’s grant of summary 24 judgment de novo and conclude that Skalafuris’s arguments on 25 appeal are without merit substantially for the reasons 26 articulated by the district court. See Skalafuris v. City 27 of New York, Dep’t of Corr. , 09-cv-5165, 2010 WL 4273286 28 (S.D.N.Y. Oct. 28, 2010). 29 30 Pursuant to New York State Human Rights Law (“NYHRL”), 31 N.Y. E XEC

. L AW § 297(9) (McKinney 2010), and New York City 32 Human Rights Law (“CHRL”), N.Y.C. ADMIN

. C ODE § 8-502(a), 33 Skalafuris’s state and city claims were barred. See York v. 34 Ass’n of Bar of City of New York , 286 F.3d 122, 127 (2d Cir. 35 2002) (“[B]y the terms of the statute and code, 36 respectively, the NYHRL and CHRL claims, once brought before 37 the [New York State Department of Human Rights], may not be 38 brought again as a plenary action in another court.”). 39 Contrary to Skalafuris’s arguments concerning these 40 election-of-remedies limitations, a federal district court 41 must apply a state’s substantive law in adjudicating a state 42 law claim. See McGullam v. Cedar Graphics, Inc. , 609 F.3d 43 70, 74 n.3 (2d Cir. 2010) (“[A] state law depriving its 44 courts of jurisdiction over a state law claim also operates 45 to divest a federal court of jurisdiction to decide the 462See 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 claim.” (quoting Moodie v. Fed. Reserve Bank of N.Y. , 58 1 F.3d 879, 884 (2d Cir. 1995))). 2 3 Skalafuris contends that the district court usurped the 4 jury’s role as trier of fact. However, there were no 5 genuine issues of material fact to be tried. See Abdu6 Brisson v. Delta Air Lines, Inc. , 239 F.3d 456, 466 (2d Cir. 7 2001) (“It is now beyond cavil that summary judgment may be 8 appropriate even in the fact-intensive context of 9 discrimination cases.”). The DOC concedes that Skalafuris 10 is a member of a protected class, was qualified for the 11 position to which he applied, and suffered an adverse 12 employment action; the only dispute is whether the 13 circumstances surrounding that action give rise to an 14 inference of age discrimination. 2They do not. 15 16 Skalafuris contends that the DOC violated various civil 17 service rules, but fails to demonstrate any connection 18 between these alleged violations and his allegations of age 19 discrimination. 20 21 Skalafuris did not raise the issue of the hired 22 candidate’s age to the district court. See Brennan v. 23 Metro. Opera Ass’n, Inc. , 192 F.3d 310, 317 (2d Cir. 1999) 24 (leaving open the question of whether an age differential is 25 sufficient to establish a prima facie case of age 26 discrimination). His contention, raised for the first time 27 on appeal, that the chosen candidate was forty-four-- 28 Skalafuris was seventy-six--is unsupported by any reference 29 to the record. 30 31 Skalafuris argues that his credentials are far superior 32 to those of the candidate hired. See Byrnie v. Town of 33 Cromwell, Bd. of Educ.
, 243 F.3d 93, 103 (2d Cir. 2001) 34 (“When a plaintiff seeks to prevent summary judgment on the 35 strength of a discrepancy in qualifications ignored by an 36 employer . . . the plaintiff's credentials would have to be 37 so superior . . . that ‘no reasonable person, in the 38 exercise of impartial judgment, could have chosen the 39 candidate selected over the plaintiff for the job in 40 question.’”) (citations omitted). Notwithstanding the 41 impressive features of Skalafuris’s resume, it is not at all 424 clear that he was more qualified for the position to which 1 he applied--which required supervisory experience in 2 construction--than the candidate hired, a former 3 construction supervisor. 4 5 The district court’s decision not to permit oral 6 argument was well within its discretion. See AD/SAT, Div. 7 of Skylight, Inc. v. Associated Press , 181 F.3d 216, 226 (2d 8 Cir. 1999). There is no constitutional right to oral 9 argument at summary judgment. See Green v. WCI Holdings 10 Corp. , 136 F.3d 313, 316 (2d Cir. 1998) (per curiam) (“Every 11 circuit to consider the issue has determined that the 12 ‘hearing’ requirements of Rule 12 and Rule 56 do not mean 13 that an oral hearing is necessary, but only require that a 14 party be given the opportunity to present its views to the 15 court.”). 16 17 Finding no merit in Skalafuris’s remaining arguments, 18 we hereby **AFFIRM** the judgment of the district court. 19 20 21 FOR THE COURT: 22 CATHERINE O’HAGAN WOLFE, CLERK 23 24