20-1280 

Bright-Asante v. Saks & Co. 

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 TO 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 14th day of May, two thousand twenty-one.

PRESENT:

BARRINGTON D. PARKER,

REENA RAGGI, 

SUSAN L. CARNEY,

Circuit Judges.

_________________________________________

MICHAEL BRIGHT-ASANTE,

Plaintiff-Appellant,

v. No. 20-1280

SAKS & COMPANY, INC., AND THEO CHRIST,

Defendants-Appellees, 

LOCAL 1102 RWDSU UFCW, 

Defendant.

_________________________________________

FOR APPELLANT: K.C. OKOLI, Law Offices of K.C. Okoli, 

P.C., New York, NY.
 

2

FOR APPELLEES: WENDY JOHNSON LARIO, Greenberg 

Traurig, LLP, Florham Park, NJ.

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

of New York (Edgardo Ramos, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on March 19, 2020, is 

AFFIRMED.

Plaintiff-Appellant Michael Bright-Asante sued his former employer, the department 

store Saks & Company, Inc. (“Saks” or “the Store”), and Saks’s Vice President of Human 

Resources, Theo Christ (together, “Defendants”), alleging discrimination in violation of 

42 U.S.C. § 1981, employment discrimination in violation of the New York City Human 

Rights Law (“NYCHRL”), and “constructive discharge.” Joint App’x 64-65 (Second Am. 

Compl. ¶¶ 79-83). The district court granted summary judgment to Defendants on all claims. 

Bright-Asante now appeals. We assume the parties’ familiarity with the underlying facts, 

procedural history, and arguments on appeal, to which we refer only as necessary to explain 

our decision to affirm.

Bright-Asante’s claims arise from his 2014 suspension without pay from his job at a 

Saks store in New York City following an internal investigation. The investigation focused 

on a group of sales associates suspected of facilitating fraudulent purchases with stolen credit 

card information, working with non-employee conspirators. In 2014, Bright-Asante 

facilitated two transactions that Saks flagged as suspicious because of the zip code associated 

with the credit card used. Upon review of relevant CCTV footage, the Store’s investigators 

concluded that the transactions were fraudulent. The Store then forwarded the footage to 

law enforcement authorities for further investigation. This referral resulted in BrightAsante’s arrest and suspension without pay.

The criminal charges against Bright-Asante were subsequently dropped on speedy 

trial grounds. Bright-Asante alleges that his suspension and Saks’s failure to reinstate him 

after the charges were dropped were unlawfully motivated by race.
 

3

On de novo review and viewing the record in the light most favorable to 

Bright-Asante, as we must, we conclude that the district court did not err when it entered 

summary judgment for Defendants. The record reveals no genuine issue of material fact

related to Bright-Asante’s claim that Saks acted with a discriminatory motive. See Robinson v. 

Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015).1

Challenging the district court’s determination, Bright-Asante, who is 

African-American, points to his allegation regarding Saks’s treatment of employee Susan 

David, who is white. David processed transactions for the same impostor customer after 

impostor’s transaction with Bright-Asante aroused the suspicions leading to the charges 

against him. Presenting David as a comparator, Bright-Asante argues that Saks’s failure to 

forward the security footage of David’s sales transactions with the impostor to law 

enforcement and to take any adverse employment actions against David constitutes unlawful 

discrimination. 

Bright-Asante’s arguments fall short. Even if David’s transaction with the imposter 

raised suspicion of a further fraudulent transaction, the evidence did not implicate David in 

the fraud so as to admit an inference of race discrimination in Saks’s treatment of its 

employees. The transactions conducted by Bright-Asante and David were different in 

material respects. David did not take the customer into the private, closed-off area where 

Bright-Asante had gone. Further, David, unlike Bright-Asante, did not allow the customer to 

access the Saks register to input her Social Security number and email address; did not use 

her cell phone during the transactions; and did not take an unusually long time to process 

her transactions. Lisa Benson, a Saks executive who reviewed the CCTV footage at the time, 

explained persuasively that because of these differences in the transactions she did not find 

David’s actions in dealing with the impostor customer suspicious and therefore did not 

forward David’s footage to law enforcement. Bright-Asante does not dispute these critical 

differences between his and David’s transactions. Nor does he point to any other aspects of 

1 Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and internal 

quotation marks.
 

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the two sets of transactions that could give rise to an inference of discriminatory motive by 

Saks in dealing with its employees. 

Bright-Asante further alleges that Saks’s failure to reinstate him in March 2015, after 

the charges against him were dropped, was a result of discriminatory intent. He fails, 

however, to adduce evidence supporting this conclusory allegation. Even under the 

NYCHRL, which courts interpret “broadly in favor of discrimination plaintiffs,” Albunio v. 

City of New York, 16 N.Y.3d 472, 477 (2011), to survive a motion for summary judgment 

Bright-Asante must adduce evidence admitting a finding that Saks’s conduct stemmed at 

least in part from a discriminatory motive, Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 

715 F.3d 102, 110 n.8 (2d Cir. 2013). But Bright-Asante has not pointed to any evidence of 

discriminatory intent fueling the decision not to reinstate him. Bright-Asante has therefore 

not made the showing necessary to preclude summary judgment for Defendants with regard 

to his failure-to-reinstate claim.

Bright-Asante’s two other claims, for unlawful discrimination under 42 U.S.C. § 1981 

and for unlawful constructive discharge, also require him to show circumstances giving rise 

to an inference of racial discrimination. See Domino’s Pizza, Inc. v McDonald, 546 U.S. 470, 476 

(2006) (“Section 1981 offers relief when racial discrimination blocks the creation of a 

contractual relationship, [or] . . . impairs an existing contractual relationship . . . .”).

Although Bright-Asante does not identify a statutory basis for his claim for wrongful 

constructive discharge, this claim would fail under any relevant statutory scheme—Section 

1981, Title VII, or the NYCHRL—because Bright-Asante has not presented evidence that 

would support an inference of discriminatory intent. See Chertkova v. Conn. Gen. Life Ins. Co., 

92 F.3d 81, 91-92 (2d Cir. 1996) (prima facie case for wrongful constructive discharge under 

Title VII requires showing that the conduct occurred “under circumstances that give rise to 

an inference of discrimination”); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 

1987) (prima facie case of wrongful discharge under Section 1981 requires showing “the 

discharge occurred in circumstances giving rise to inference of racial discrimination”).

Therefore, the district court properly entered summary judgment for Defendants on these 

claims as well.
 

5

Finally, in March 2017, in these same proceedings, the district court denied a motion 

filed by Bright-Asante for vacatur of an arbitration award, rejecting a grievance pursued by 

Bright-Asante’s union against Saks. See Bright-Asante v. Saks & Co., 242 F. Supp. 3d 229, 236, 

238-39 (S.D.N.Y. 2017).2 On appeal, Bright-Asante maintains that the district court erred 

when it denied vacatur because (Bright-Asante asserts) the award was obtained by fraud—

specifically, based on the allegedly perjurious testimony of a Saks employee. On review, we 

identify no error in the district court’s denial of the motion. To establish fraud sufficient to 

vacate an arbitral award, Bright-Asante had to show (1) the existence of “fraudulent activity”;

(2) that, “even with the exercise of due diligence,” he “could not have discovered the fraud 

prior to the award issuing”; and (3) that “the fraud materially related to an issue in the 

arbitration.” Odeon Cap. Grp. LLC v. Ackerman, 864 F.3d 191, 196 (2d Cir. 2017). BrightAsante provided no evidence of the testimony taken during the arbitration (which he did not 

attend) in his moving papers before the district court and does no more than repeat these 

unsupported allegations in his briefing before this Court. Without providing at least the 

challenged testimony, he has failed to show that any perjury occurred or even that the 

testimony he wishes to challenge was materially related to the arbitrator’s decision. See Duferco 

Int'l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003) (“A party 

petitioning a federal court to vacate an arbitral award bears the heavy burden of showing that 

the award falls within a very narrow set of circumstances delineated by statute and case 

law.”). Bright-Asante has therefore failed to demonstrate any error.

* * *

2 Defendants maintain we lack jurisdiction to entertain this challenge because Bright-Asante did not identify 

any judgment other than the district court’s March 2020 order awarding summary judgment to Saks in his 

Notice of Appeal. While Federal Rule of Appellate Procedure 3(c) requires the notice of appeal to “designate 

the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B), “a notice of appeal that 

names the final judgment” will typically “support review of all earlier orders that merge in the final 

judgment,” City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 453 (2d Cir. 2008). We need not 

conclusively decide the jurisdictional question, however, because Bright-Asante’s challenge is without merit in 

any event, for the reasons discussed above. 
 

6

We have considered Bright-Asante’s remaining arguments and find in them no basis 

for reversal. For the foregoing reasons, the district court’s judgment is AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court