15‐3054‐cv

McAllister v. Quik Park

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 COURTʹS 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

ʺSUMMARY ORDERʺ).  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 12th day of September, two thousand sixteen.

PRESENT: RALPH K. WINTER,

DENNY CHIN,

    CHRISTOPHER F. DRONEY,

     Circuit Judges.

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MORRIS MCALLISTER,  

     Plaintiff‐Appellant,

    v.             15‐3054‐cv

QUIK PARK,

     Defendant‐Appellee.1

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1   The Clerk of Court is respectfully directed to amend the official caption to

conform to the above.
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FOR PLAINTIFF‐APPELLANT: MORRIS MCALLISTER, pro se, New York,

New York.

FOR DEFENDANT‐APPELLEE: HARRIS B. KATZ, Winget Spadafora &

Schwartzberg, LLP, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Ellis, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.  

Plaintiff‐appellant Morris McAllister, proceeding pro se, appeals from a

judgment entered September 2, 2015, in favor of his former employer, defendant‐

appellee Quik Park PCVST Garage, LLC (ʺQuik Parkʺ), in his employment

discrimination suit under Title VII of the Civil Rights Act of 1964 (ʺTitle VIIʺ), 42 U.S.C.

§ 2000 et seq., and the New York Human Rights Law (ʺNYHRLʺ), N.Y. Exec. Law § 296.  

We assume the partiesʹ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.2

We review de novo a district courtʹs grant of summary judgment.  Garcia v.

Hartford Police Depʹt, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam).  Summary judgment

must be granted if ʺthere is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.ʺ  Fed. R. Civ. P. 56(a).  When determining

whether a genuine dispute exists, we must ʺresolve all ambiguities and draw all

                                                 

2   Pursuant to 28 U.S.C. § 636(c), the parties consented to jurisdiction over the case

by Magistrate Judge Ronald L. Ellis.   
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inferences against the moving party.ʺ  Garcia, 706 F.3d at 127.  We have held that ʺ[e]ven

when a motion for summary judgment is unopposed, the district court is not relieved of

its duty to decide whether the movant is entitled to judgment as a matter of law,ʺ Vt.

Teddy Bear Co. v. 1‐800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004), and further stated

that, ʺ[i]f the evidence submitted in support of the summary judgment motion does not

meet the movantʹs burden of production, then ʹsummary judgment must be denied

even if no opposing evidentiary matter is presented,ʹʺ  id. at 244 (emphasis omitted)

(quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)).

McAllister does not argue in his appellate brief that he was discriminated

against on the basis of his age and race.  Accordingly, those claims are deemed

abandoned.  See LoSacco v. City of Middletown, 71 F.3d 88, 92‐93 (2d Cir. 1995) (explaining

that a pro se appellant abandons issues not raised in his appellate brief).  Nonetheless,

even if McAllister did not abandon his claims, and even if he had properly exhausted

his administrative remedies, he cannot prevail.  Except as noted below, we affirm for

substantially the reasons stated by the district court in its September 2, 2015 decision.

Although McAllister did not oppose the summary judgment motion

below, the district court conducted an independent analysis to ensure that the movant

had met its burden. The district court correctly granted summary judgment for Quik

Park on McAllisterʹs Title VII claim.  To establish a prima facie case of discrimination, a

plaintiff must show that ʺ(1) he is a member of a protected class; (2) he is competent to
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perform the job or is performing his duties satisfactorily; (3) he suffered an adverse

employment decision or action; and (4) the decision or action occurred under

circumstances giving rise to an inference of discrimination based on his membership in

the protected class.ʺ  Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005).  If the

plaintiff succeeds, the burden then shifts to the employer to ʺproffer some legitimate,

nondiscriminatory reason for the adverse decision or action.ʺ  Id.  McAllister has offered

no facts that would give rise to an inference of discrimination based on his race, nor has

he presented evidence sufficient to raise an issue of fact as to whether Quik Parkʹs

nondiscriminatory reason for laying him off ‐‐ that it eliminated the porter position ‐‐ 

was pretextual.  See id.

It is unclear whether the district court construed McAllisterʹs complaint to

raise a claim under the Age Discrimination in Employment Act (ʺADEAʺ), 29 U.S.C.

§ 621 et seq.  The district court likely should have; although the ADEA box was not

marked on page one of the complaint, ʺageʺ was checked on page three.  Any error was

harmless.  An ADEA claim would have failed for the same reasons as the Title VII

claim, especially because the ADEA has a stricter ʺbut‐forʺ causation standard.  See

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (interpreting the ADEA to require

the plaintiff to show that age was a ʺbut‐forʺ cause of his termination).

The district court should not have reached the merits of McAllisterʹs

NYHRL claims, however, because the court did not have jurisdiction over these claims.  
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Nonetheless, we affirm the judgment for lack of jurisdiction.  See United States v. Watts,

786 F.3d 152, 161 (2d Cir. 2015) (ʺWe . . . may affirm on any ground which finds support

in the record.ʺ (internal quotation marks omitted)).  Under New York law, ʺNYHRL . . .

claims, once brought before the [New York State Division of Human Rights

(ʺNYSDHRʺ)], may not be brought again as a plenary action in another court.ʺ  York v.

Assʹn of the Bar of the City of New York, 286 F.3d 122, 127 (2d Cir. 2002).  McAllister filed a

complaint with the NYSDHR and, after an investigation, the NYSDHR dismissed the

complaint.  Because ʺa state law depriving its courts of jurisdiction over a state law

claim also operates to divest a federal court of jurisdiction to decide the claim,ʺ Moodie

v. Fed. Reserve Bank of N.Y., 58 F.3d 879, 884 (2d Cir. 1995), the district court lacked

jurisdiction to hear McAllisterʹs NYHRL claims.

Finally, McAllister attaches a letter submitted to the district court below,

which asserts that Quik Park ʺfailed to provide [him] with requested documents.ʺ  

Appellantʹs Br. at 4.  To the extent that this letter can be construed as a challenge to the

district courtʹs denial of his request for Federal Rule of Civil Procedure 56(d) discovery,

this claim fails because McAllister has failed to show any abuse of discretion by the

district court.  See Alphonse Hotel Corp. v. Tran, ‐‐‐ F.3d ‐‐‐, 2016 WL 3675321, at *3 (2d

Cir. July 11, 2016) (ʺWe review a district courtʹs denial of [the nonmovant]ʹs Rule 56(d)

motion for abuse of discretion.ʺ).
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We have considered McAllisterʹs remaining arguments and find them to

be without merit.  Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:  

Catherine OʹHagan Wolfe, Clerk