15

‐ 3054

‐ cv

McAllister v. Quik Park

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 ʹ 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

ʺ SUMMARY ORDER ʺ ). 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 12 th day of September, two thousand sixteen.

PRESENT: RALPH K. WINTER,

DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

MORRIS MCALLISTER,

Plainti ff‐ Appellant

,

v. 15

‐ 3054

‐ cv

QUIK PARK,

Defendant

‐ Appellee. 1

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

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

conform to the above.2 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 ( ʺ Quik Park ʺ ), in his employment

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

§ 2000 et seq.

, and the New York Human Rights Law ( ʺ NYHRL ʺ ), N.Y. Exec. Law § 296.

We assume the parties ʹ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal. 2

We review de novo a district court ʹ s grant of summary judgment. Garcia v.

Hartford Police Dep ʹ t

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

must be granted if ʺ there 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 ʺ resolve 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.3 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 movant ʹ s burden of production, then ʹ summary 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 McAllister ʹ s 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 to4 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 ʺ proffer 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 Park ʹ s

nondiscriminatory reason for laying him off

‐‐ that it eliminated the porter position

‐‐

was pretextual. See id.

It is unclear whether the district court construed McAllister ʹ s complaint to

raise a claim under the Age Discrimination in Employment Act ( ʺ ADEA ʺ ), 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, ʺ age ʺ 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 ʺ but

‐ for ʺ 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 ʺ but

‐ for ʺ cause of his termination).

The district court should not have reached the merits of McAllister ʹ s

NYHRL claims, however, because the court did not have jurisdiction over these claims.5 Nonetheless, we affirm the judgment for lack of jurisdiction. See United States v. Watts

,

786 F.3d 152, 161 (2d Cir. 2015) ( ʺ We

. . . may affirm on any ground which finds support

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

. . .

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

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

Ass ʹ n 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 ʺ a 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 McAllister ʹ s NYHRL claims.

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

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

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

district court ʹ s 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) ( ʺ We review a district court ʹ s denial of [the nonmovant] ʹ s Rule 56(d)

motion for abuse of discretion. ʺ ).6 We have considered McAllister ʹ s remaining arguments and find them to

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

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk