20

- 3125

- cv Connolly v. City of New York

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 NO TATION A 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 2 2 n d d ay of M a r c h , two thousand twenty

- two

. 3 4 PRESENT: REENA RAGGI, 5 GERARD E. LYNCH , 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 DELANO CONNOLLY , 10 11 Plaintiff

- A ppell ant , 12 13

v. No. 20

- 3125

- c v 14 15 CITY OF NEW YORK, JOSEPH CARDIERI, 16 PAUL SAVARESE, IAN SANGENITO, ALAN 17 SPUTZ, SUSAN STARKER, FREDDA MONN , 18 19 Defendant s

- Appell ees

. 20

------------------------------------------------------------------ 212 FOR PLAINTIFF

- APPELLANT : M ICHAEL G. O’ NEILL , New 1 York, NY 2 3 FOR DEFENDANTS

- APPELLEE S : M ELANIE T. W EST , Assistant 4 Corporation Counsel (Richard 5 Dearing, Barbara Graves

6 Poller , on the brief ), for James E. 7 Johnson, Corporation Counsel 8 of the City of New York, New 9 York, N Y 10 Appeal from a judgment of the United States District Court for the Eastern 11

District of New York ( William F. Kuntz , J udge ). 12
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 13

AND DECREED that the judgment of the D istrict C ourt is AFFIRMED in part, 14
VACATED in part, and REMANDED for further proceedings consistent with this 15

order

. 16
Delano Connolly , an attorney for the Administration for Children ’ s 17

Services ( “ ACS ” ) of the City of New York , claimed that the City unlawfully 18
discriminated and retaliated against him in violation of Title VII of the Civil 19
Rights Act of 1964, 42 U.S.C. § § 2000e et seq. , and that the City and the individual 20

Defendants

- Appellees also violated 42 U.S.C. § 1983 and the New York City 21

Human Rights Law, N.Y.C. Admin. Code § § 8

- 101 et seq. Those claims were 223 based on ACS’s transferring Connolly to a different unit, conducting a lengthy 1
investigation of sexual harassment allegations made against him by a coworker, 2
denying him promotion, suspend ing him for alleged unprofessional conduct 3
during interactions with a contract agency’s employee in family court, and other 4

actions short of termination that he viewed as adverse. 5
Connolly now appeal s from the August 19, 2020 judgment d ismissing 6

some of his retaliation claims as time

- barred . Further, he argues that genuine 7
disputes of material fact preclude d summary judgment as to his claims of race 8
and gender discrimination as well as retaliation

. We assume the parties’ 9
familiarity with the underlying facts and the record of prior proceedings, to 10
which we refer only as necessary to explain our decision to affirm in part, vacate 11
in part, and remand for further proceedings. 12

W e review de novo a district court ’ s grant of both dismiss al under Federal 13

Rule of Civil Procedure 12(b)(6) and summary judgment under Rule 56. S ee 14

Simmons v. Roundup Funding, LLC , 622 F.3d 93, 95 (2d Cir. 2010) ; Ya

- Chen 15
Chen v. City Univ. of N.Y. , 805 F.3d 59, 69 (2d Cir. 2015). At the summary 16
judgment stage, we look to “whether a fair

- minded jury could return a verdict 174 for the [non

- moving] party on the evidence presented.” Jeffreys v. City of New 1

York , 426 F.3d 549, 553 (2d Cir. 2005) (citation omitted)

. 2

I. Discrimination u nder Title VII, 42 U.S.C. § 198 3 , and the NY C HRL 3
We analyze d iscrimination claims under Title VII and § 198 3 under the 4

familiar three

- step McDonnell Douglas burden

- shifting framework. See 5
McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973); Littlejohn v. City of 6

New York , 795 F.3d 297, 312 (2d Cir. 2015)

. First, the plaintiff must establish a 7
prima facie case of discrimination

. Vega v. Hempstead Union Free Sch. Dist. , 8
801 F.3d 72, 83 (2d Cir. 2015)

. Second, if th e plaintiff has established a prima 9

facie case , the burden “ shifts to the employer to ‘articulate some legitimate, 10
nondiscriminatory reason’ for the disparate treatment.” Id. (quoting McDonnell 11
Douglas Corp. , 411 U.S. at 802). Third, “ [i] f the employer articulates such a 12
reason for its actions, the burden shifts back to the plaintiff to prove that the 13
employer’s reason was in fact pretext for discrimination.” Id. (quotation marks 14
omitted). Under the NYCHRL, by contrast, an employer charg ed with a claim 15

of unlawful discrimination is entitled to summary judgment “ if the record 16
establishes as a matter of law that discrimination play[ed] no role in its actions.” 175 Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 110 n.8 (2d Cir. 1
2013) (quotation marks omitted)

. 2
In granting summary judgment in favor of the City and the individual 3
defendants, the District Court concluded that Connolly failed to establish a 4
prima facie case of race discrimination under Title VII and § 198 3, except as to his 5

failure

- to

- promote claims, which Connolly has abandoned on appeal. See 6
Appellant’s Br. at 55 n.14. We agree with the District Court that Connolly’s 7
claims of race and sex discrimination stemming from his temporary transfer to 8
ACS’s Legal Compliance Unit fail because Connolly failed to adduce either direct 9
evidence of intent to discriminate or any eviden ce that “give[s] rise to an 10

inference of discrimination.” Vega , 801 F.3d at 87. We likewise conclude that 11
Connolly failed to adduce such evidence with respect to ACS’s investigations of 12
his alleged misconduct, and thus that his Title VII and § 1983 discr imination 13
claims stemming from those investigations fail as well. We conclude further 14

that the Defendants

- Appellees were entitled to judgment in their favor on all of 15
the Title VII and § 1983 discrimination claims at issue on appeal because 16
Connolly faile d to adduce evidence that the Defendants

- Appellees’ proffered 176 legitimate, non

- discriminatory reasons for their employment actions, including 1
the internal investigations of Connolly’s workplace misconduct and the results of 2
those investigations, were a pret ext for discrimination based on Connolly’s race 3
or gender. See Graham v. Long Island R.R. , 230 F.3d 34, 38 (2d Cir. 2000). 1 4
Finally, we affirm the District Court’s grant of summary judgment on Connolly’s 5

claims of discrimination under the NYCHRL for the reasons stated by the District 6
Court: Connolly failed to adduce any evidence that discrimination played a role 7

in the Defendants

- Appellees’ actions, or that he was treated “less well” because 8

of his race or sex. Mihalik , 715 F.3d at 110 & n.8. 9

II. Retaliatio n under Title VII and 42 U.S.C. § 1983 10

We turn next to Connolly’s retaliation claims under Title VII and § 1983 , 11

which are also analyzed under the McDonnell Douglas burden

- shifting 12

framework. Gorzynski v. JetBlue Airways Corp. , 596 F.3d 93, 110 (2d Cir. 2010) ; 13

see also Rasmy v. Marriott Int ’ l, Inc. , 952 F.3d 379, 391 (2d Cir. 2020). 14

1 Insofar as the District Court did not address this or the preceding point, we “are free to affirm on any ground that finds support in the record, even if it was not the ground upon which the trial court relied.” United States v. Delva , 858 F.3d 135, 152 ( 2d Cir. 2017) (quotation marks omitted).7 We first address the District Court’s decision to dismiss as time

- barred 1
Connolly’s retaliation claims arising before November 20, 2013

. T he District 2

Court dismissed those claims under Rule 12(b)(6) because he failed to file a 3
charge with the Equal Employment Opportunity Commission (EEOC) within 300 4
days of date the retaliatory act occurred

. We conclude that t he District Court 5

erred when it failed to consider the “reasonably related” doctrine, which applies 6
where the retaliation is alleged to have occurred, as here, “while the EEOC 7
charge is still pending before the agency.” Duplan v. City of New York , 888 8
F.3d 612, 622 (2d Cir. 2018). In such cases, “the retaliation claim is deemed 9
‘reasonably related’ to the original EEOC filing,” and the original filing satisfies 10
Title VII’s exhaustion requirement as to the retaliation claim

. Owens v. N.Y.C. 11

Hous. Auth. , 934 F.2d 405, 410

– 11 (2d Cir. 1991). “The retaliation claim may 12
thus be heard notwithstanding [the] plaintiff’s failure to state it in a separate 13
complaint filed with the EEOC.” Id. at 411. In dismissing certain retaliation 14
claims as untimely, the District Court relied on the S upreme Court’s decision in 15
National R.R. Passenger Corp. v. Morgan , 536 U.S. 101 (2002) . Our decisions 16

after Morgan , however, have continued to recognize an exception for retaliation 178 claims “reasonably related” to pending EEOC complaints. See , e.g. , Dupl an , 1
888 F.3d at 622. The City makes no argument on appeal that those decisions are 2

incorrect. We th erefore vacate the District Court’s judgment insofar as it 3

dismissed the claims of retaliation that occurred prior to November 20, 2013. 4
We next address the District Court’s grant of summary judgment 5
dismissing on the merits those retaliation claims that it deemed timely. As to 6

those claims, we conclude that Connolly failed to adduce any evidence that the 7

Defendant s
- Appellees’ proffered leg itimate, non

- retaliatory justifications were a 8

pretext for illegal retaliation

. Connolly’s evidence of retaliatory motive was 9
conclusory and insufficient to “ demonstrate an adequate causal link between his 10
protected activity and allegedly adverse actions.” Agosto v. New York City 11
Dep ’ t of Educ. , 982 F.3d 86, 104 (2d Cir. 2020). W e therefore affirm the District 12
Court’s grant of summary judgment on the retaliation claims it deemed to have 13

been timely filed

. 14

We have considered Connolly’s remaining arguments and conclude that 15
they are without merit. For the foregoing reasons, the judgment of the District 169 Court is AFFIRMED in part, VACATED in part, and REM ANDED for further 1
proceedings consistent with this order

. 2

FOR THE COURT: 3 Catherine O = Hagan Wolfe, Clerk of Court 4