18-1333 Szewczyk v. Saakian

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
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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

30 th day of July, two thousand nineteen.

PRESENT: PIERRE N. LEVAL, ROSEMARY S. POOLER, BARRINGTON D. PARKER, Circuit Judges.

_____________________________________

DANUTA SZEWCZYK,

Plaintiff-Appellant

,

v. 18-1333-cv

TAMARA SAAKIAN, AUDREY BROWNBENNETT, CITY OF NEW YORK,

Defendants-Appellees. 1

_____________________________________

FOR PLAINTIFF-APPELLANT: Danuta Szewcyck, pro se, Elmwood Park,

N.J.

FOR DEFENDANTS-APPELLEES: Scott Schorr, Jonathan Popolow, Assistant Corporation Counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, N.Y.

1 The Clerk of the Court is direct ed to amend the caption as above.2 Appeal from a judgment of the Un ited States District Court for th e Eastern District of New York (Brodie, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in part

and VACATED and REMANDED in part.

Appellant Danuta Szewczyk, pro se , appeals from a judgment en tered by the United States District Court for the Eastern District of New York (Brodie, J. ) dismissing her claims under Title VII, the Age Discrimination in Employment Ac t (“ADEA”), the New Yo rk State Human Rights Law (“NYSHRL”), and the New York City Hu man Rights Law (“NYCHRL”). We assume the parties’ familiarity with the underlying facts, the procedural hist ory of the case, and the issues on appeal.

I. Motion to Dismiss

“We review the grant of a motion to dismiss de novo , accepting as true all factual claims in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Fink v. Time Warner

Cable , 714 F.3d 739, 740–41 (2d Cir. 2013). Title VII a nd ADEA claims are evaluated under the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). A plaintiff sufficiently alle ges a claim of discrimination wh ere the complaint asserts facts supporting a minimal inference that the employer’s adverse action was motivated by the alleged

discrimination. See Littlejohn v. City of New York , 795 F.3d 297, 311 (2d Cir. 2015). Claims of national origin, religion, and age discrimination under the NYSH RL are analyzed under the same

standards as Title VII and ADEA claims. See Spiegel v. Schulmann , 604 F.3d 72, 80 (2d Cir. 2010) (Title VII); Abrahamson v. Bd. of Educ. of Wappingers Falls Cent. Sch. Dist. , 374 F.3d 66, 70 n.2 (2d Cir. 2004) (age).

In contrast to NYSHRL claims, claims unde r the NYCHRL must be analyzed separately

from federal and state law discrimination claims. Velazco v. Columbus Citizens Found. , 778 F.3d 409, 411 (2d Cir. 2015). To state a claim under th e NYCHRL, “the plain tiff need only show

differential treatment—that she is treated ‘less well’—because of a discriminatory intent.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 110 (2d Ci r. 2013). Although the NYCHRL has a more liberal pleading standard than its federal or state count erparts, courts “must be mindful that the NYCHRL is a not a general civility code.” Id. (internal quotation marks omitted).

A. Age and Sex

The district court erred by dismissing Szewczyk’s NYSHRL and ADEA age discrimination claims. Szewczyk’s complaint alleges that: she, the “older” applicant, was not selected to advance in the interview process; one of the applicants selected was a “young” male; Saakian asked her during her interview whether sh e would be comfortable worki ng with younger supervisors; and3 Saakian “discredited [Szewczyk] as ‘old’ and not liking to work with ‘young.’” ROA, Dkt. No. 20,

at 4. These allegations are sufficient to “give pl ausible support to a minimal inference of discriminatory motivation,” Littlejohn , 795 F.3d at 311, which is all that is required at this stage.

We conclude that the distri ct court also erred by dismi ssing Szewczyk’s sex discrimination claims. Szewczyk alleged that two men were advanced to the next round of interviews, while she, the sole woman interviewed, was re jected. Szewczyk’s allegation that two men were advanced over her was sufficient to give rise to an infere nce of sex discriminati on under Title VII and the

NYSHRL. See Littlejohn v. City of New York , 795 F.3d 297, 313 (2d Cir. 2015) (“The fact that a plaintiff was replaced by someone outside the prot ected class will ordinarily suffice for the required

inference of discrimination at the initial prima facie stage of the Ti tle VII analysis, including at the pleading stage.”). For the same reason, the distri ct court should not have dismissed her NYCHRL claim. Accordingly, the district court erred by dismissing the sex discri mination claims and we

vacate their dismissal.

B. Race

Szewczyk also alleged racial discriminati on based on her blue ey es. But Title VII, NYSHRL, and NYCHRL do not prot ect individuals from discrimination based on eye color. See 42 U.S.C. § 2000e-2(a)(1); N.Y. Exec. Law § 296(1)(a); N.Y.C. Ad min. Code § 8-107. Her challenge to the dismissal of her ra ce discrimination cl aims thus fails.

II. Motion for Summary Judgment

We review orders granting summary judgment de novo. See Sousa v. Marquez , 702 F.3d 124, 127 (2d Cir. 2012). In response to a complaint th at alleges facts suppor ting a minimal inference of discrimination, the employer must assert a leg itimate, non-discriminatory reason for the adverse employment decision. See Vega , 801 F.3d at 83; see also McDonnell Douglas , 411 U.S. at 802. If the employer does so, the plaintiff must raise a dis puted issue of material fact as to whether the employer’s “proffered reason was not the true reason (or in any event not the sole reason) for the employment decision.” Littlejohn , 795 F.3d at 307-08; See also Texas Dep’t of Comm. Affairs v.

Burdine , 450 U.S. 248, 255-56, 255 n.10 (1981). “[T]he employer will be entitled to summary judgment . . . unless plaintiff can point to evidence that reasonably supports a finding of prohibited

discrimination.” James v. N.Y. Racing Ass’n , 233 F.3d 149, 154 (2d Cir. 2000) (citations omitted).

A. National Origin and Religion (Title VII and NYSHRL)

We affirm the district c ourt’s grant of summary judgment to defendants on Szewczyk’s disparate treatment claims based on her national origin and religion. Prior to the motion for summary judgment, Saakian asserted a legitima te, nondiscriminatory reason for advancing the

other candidates in the interview process while declining to advan ce Szewczyk. Saakian stated that

both candidates who were chosen to advance to th e second round of interviews had better prior experience than Szewczyk, and that Lak, who was ultimately chosen, also had prior experience4 working for another city agency doing roof inspec tions, a necessary part of the assistant engineer position. Szewczyk lacked this re levant experience; instead her recent experience included factory and laboratory settings, rath er than roof inspections.

Once Saakian asserted this nondiscriminatory reason, Szewczyk was required to “point to evidence that reasonably supports a finding of prohibited discriminati on” in order to avoid summary judgment. James , 233 F.3d at 154. Szewczyk failed to offer a ny evidence that would give rise to an inference of discrimination, let alone that the de fendants’ legitimate, non-di scriminatory reason was pretextual. Szewczyk’s claim that Saakian refused to hire her due to her Polish ancestry is based solely on her allegation that Sa akian had a “Russian” accent and th at she stated “You are from Poland” at the beginning of Szewczyk’s inte rview. And the only evidence that Saakian discriminated against her based on her religion is her assertion that all Polish people are Roman

Catholic and Saakian could have made an infe rence that she was Roman Catholic from her nationality.

Saakian’s statement that Szewczyk was from Po land is not sufficient to create an inference of discrimination, as Saakian di d not use any ethnically degradin g term or make any invidious comments about Polish people. See Littlejohn , 795 F.3d at 312 (“An inference of discrimination can arise from circumstances including . . . criticis m of the plaintiff’s performance in ethnically degrading terms . . . [or] invidious comments a bout others in the employee’s protected group[.]” (internal quotation marks omitted)). Szewczyk’s claim that Saakian is from the former Soviet Union and therefore biased against her be cause of her Polish nationality is based solely on Saakian’s accent and Szewczyk’s ethn ic stereotyping. Such speculation cannot be used to overcome summary judgment. See Scotto v. Almenas , 143 F.3d 105, 114 (2d Cir. 1998) (“The non-moving party may not rely on conclusory allegations or unsubstan tiated speculation.”). Similarly, Szewczyk offered

no evidence that Saakian was aware of her religion and merely specul ates that Saakian could have inferred it from her nationality. Further, the fa ct that both candidates had the relevant prior experience is a legitimate, non-discriminatory reason for advancing them in the interview process.

Szewczyk primarily argues that she was bett er qualified than Lak and Notghi. But given that Szewczyk had the same educational qualifications as Lak and lacked relevant work experience,

she did not show that her credential s were “so superior to the creden tials of the person selected for the job that no reasonable person, in the exercise of impartial j udgment, could have chosen the candidate selected over the plai ntiff for the job in question.” Byrnie v. Town of Cromwell, Bd. of

Educ. , 243 F.3d 93, 103 (2d Cir. 2001) (i nternal quotation marks omitted), superseded in part and on other grounds by Fed. R. Civ. P. 37(e).

B. National Origin and Religion (NYCHRL)

For the same reasons, the district court properly granted summ ary judgment to the defendants with respect to Szewczyk’s NYCHRL national origin and religion discrimination claims. Defendant-Appellants offered a legitima te, non-discriminatory reason for advancing Lak and Notghi to the second round of interviews, and Szewczyk offered no evidence to show that this5 reason was a pretext for discrimination. See Ya-Chen Chen v. City Univ. of N.Y. , 805 F.3d 59, 76 (2d Cir. 2015) (summary judgment for NYCHRL clai ms is appropriate if no reasonable jury could

conclude that discrimina tion played a role in th e defendant’s actions).

C. Age (NYCHRL)

We also affirm the district court’s grant of summary judgment to defendants on Szewczyk’s NYCHRL age discrimination claim. Saakian’s que stion about how Szewcz yk would feel aboutworking with younger supervisors is not sufficient to overcome the defendants’ legitimate, nondiscriminatory reason for a dvancing Notghi over her. See Danzer , 151 F.3d at 56. A reasonable jury could not conclude that the defendants reje cted Szewczyk’s application for the engineering position because of her age. See Ya-Chen Chen. , 805 F.3d at 76.

We have reviewed the remainder of Szewcz yk’s arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is VACATED with respect to Szewczyk’s NYSHRL and ADEA age discrimination claims and her Title VII, NYSHRL, and

NYCHRL sex discrimination clai ms, and those claims are REMANDED for further proceedings. The judgment is AFFIRMED in all other respects.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court