19-3640

Palencar v. New York Power Authority

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 8th day of December, two thousand twenty.

PRESENT: RICHARD J. SULLIVAN,

MICHAEL H. PARK, 

WILLIAM J. NARDINI,

Circuit Judges.

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STEVEN PALENCAR,

Plaintiff-Appellant,

v. No. 19-3640

NEW YORK POWER AUTHORITY, GIL 

QUINIONES, KRISTINE PIZZO, ED WELZ,

PHILIP TOIA, WILLIAM SENIOR, RANI 

POLLACK, DIANA BODOLATO,
2

Defendants-Appellees.*

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FOR PLAINTIFF-APPELLANT: ALLEN A. SHOIKHETBROD, Tully 

Rinckey PLLC, Albany, NY. 

FOR DEFENDANTS-APPELLEES: JONATHAN B. FELLOWS, Bond, 

Schoeneck & King, PLLC, Syracuse, 

NY.

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

District of New York (David N. Hurd, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

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

AFFIRMED. 

Plaintiff-Appellant Steven Palencar appeals from an order of the United 

States District Court for the Northern District of New York (Hurd, J.) granting

summary judgment in favor of New York Power Authority (“NYPA”) and seven 

individual defendants currently or previously affiliated with NYPA (together, 

“Appellees”). As relevant here, Palencar, a former NYPA employee, brought

claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 

the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq.,

alleging that he suffered unlawful discrimination based on his sexual orientation 

* The Clerk of Court is respectfully directed to amend the caption as set forth above.
3

and retaliation for engaging in protected activity. On appeal, Palencar argues that 

the district court improperly weighed the evidence and made credibility 

determinations in granting summary judgment to Appellees despite the existence 

of genuine issues of material fact as to his Title VII and NYSHRL claims.1 We 

assume the parties’ familiarity with the underlying facts, procedural history of the 

case, and issues on appeal, to which we refer only as necessary to explain our 

decision. 

We review the district court’s grant of summary judgment de novo, 

“construing the evidence in the light most favorable to the non-moving party and 

drawing all reasonable inferences in [his] favor.” Mihalik v. Credit Agricole 

Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). 

I. Discrimination

In evaluating Title VII and NYSHRL discrimination claims where the 

plaintiff lacks direct evidence of discriminatory conduct, we apply the familiar

three-step burden shifting framework established in McDonnell Douglas Corp. v. 

1 The district court also granted summary judgment on Palencar’s retaliation claims 

under New York Labor Law § 740 and the Fair Labor Standards Act, but Palencar’s 

opening brief fails to preserve those claims. Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 

2001) (explaining that claims are abandoned when presented “in a perfunctory manner, 

unaccompanied by some effort at developed argumentation” (internal quotation marks 

omitted)). 
4

Green, 411 U.S. 792 (1973). See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 

2000); Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010). 

Under that framework, a plaintiff must first establish a prima facie case of 

discrimination, which then shifts the burden to the employer to come forward 

with a legitimate, nondiscriminatory reason for the adverse employment action. 

See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If the 

employer provides such a justification, the plaintiff must present evidence from 

which a reasonable jury could find that the employer’s explanation is a pretext for 

intentional discrimination. See id. at 143. 

Even if we assume that Palencar established a prima facie case of 

discrimination, the record is clear that NYPA proffered legitimate reasons for the

various employment actions Palencar challenges as discriminatory, and that 

Palencar failed to adduce sufficient evidence from which a jury could find pretext. 

See, e.g., Graves v. Finch Pruyn & Co., 457 F.3d 181, 187–88 (2d Cir. 2006). 

At the third step of the McDonnell Douglas framework, our task is to 

“examin[e] the entire record,” using a case-specific approach, “to determine 

whether the plaintiff could satisfy his ultimate burden of persuading the trier of 

fact that the defendant intentionally discriminated against the plaintiff.” Schnabel
5

v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (internal quotation marks omitted); see 

also Zimmermann v. Assocs. First Cap. Corp., 251 F.3d 376, 382 (2d Cir. 2001). To 

defeat summary judgment, the plaintiff must produce enough evidence to support 

a rational finding not only that the employer’s nondiscriminatory reasons were 

false but also “that more likely than not discrimination was the real reason for the” 

employment actions. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d 

Cir. 1996) (brackets and internal quotation marks omitted)). 

The overall record, the entirety of which we do not detail here, shows that 

Palencar’s subordinates lodged repeated complaints against him over the course 

of several years, that he was consistently combative and defiant toward his 

superiors, and that he was unwilling to incorporate constructive feedback in 

response to his performance reviews over that time. Even if it could be argued 

that Palencar presented some evidence of pretext, the record, taken as a whole, 

does not permit a reasonable trier of fact to find that “the most likely alternative 

explanation” for his termination was sexual orientation discrimination. 

Reeves, 530 U.S. at 147; see James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 

2000) (explaining that a plaintiff is not guaranteed a trial merely because he can 
6

satisfy a prima facie case and can adduce “evidence that arguably would allow a 

reasonable factfinder to conclude that [the employer’s] explanation . . . is false”). 

II. Retaliation

We similarly apply a burden-shifting framework to retaliation claims under 

Title VII and the NYSHRL, which prohibit employers from retaliating against 

employees because, as relevant here, the employee opposed a discriminatory 

practice or brought a discrimination charge against the employer. 42 U.S.C.

§ 2000e–3(a); N.Y. Exec. Law § 296(7). As with discrimination claims, if the 

plaintiff establishes a prima facie case of retaliation, the burden shifts to the 

employer to offer “a legitimate, non-retaliatory reason for the adverse 

employment action.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 

2015) (internal quotation marks omitted). If the employer articulates such a 

reason, “the presumption of retaliation dissipates,” leaving the plaintiff to “prove 

that the desire to retaliate was the but-for cause of the challenged employment 

action.” Id. (internal quotation marks omitted). He can do so “by demonstrating 

weaknesses, implausibilities, inconsistencies, or contradictions in the employer's 

proffered legitimate, nonretaliatory reasons for its action.” Kwan v. Andalex Grp.

LLC, 737 F.3d 834, 846 (2d Cir. 2013). 
7

Palencar claims that he suffered adverse employment actions as retaliation 

for bringing his previous settled lawsuit and for making subsequent internal and 

external complaints alleging unlawful activity. But, as noted above with respect 

to Palencar’s discrimination claims, even if we assume that Palencar has 

established a prima facie case of retaliation, there can be no question that NYPA 

proffered legitimate, non-retaliatory reasons for disciplining and ultimately 

terminating him. Based on the totality of the record, we agree with the district 

court that a rational jury could not find that retaliation was the but-for cause of the 

actions taken against Palencar.

We have considered the rest of Palencar’s arguments and conclude that they 

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

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court