22

- 644

- cv Ortiz v. State of Connecticut

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 ” SUMMARY ORDER ” ). 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 4 th day of April , two thousand twenty

- three

. 3 4 PRESENT: BARRINGTON D. PARKER , 5 GERARD E. LYNCH , 6 RAYMOND J. LOHIER, JR. , 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 LUIS ORTIZ , 10 11 Plaintiff

- Appellant , 12 13

v. No. 22

- 644

- cv 14 15 STATE OF CONNECTICUT, DEPARTMENT OF 16 TRANSPORTATION , 17 18 Defendant s

- Appellee s

. 19

------------------------------------------------------------------ 202 FOR PLAINTFF

- APPELLANT : Lui s Ortiz, pro se , Bridgeport, 1 CT 2 3 FOR DEFENDANT S

- APPELLEE S : Colleen B. Valentine, Assistant 4 Attorney General, for William 5 Tong, Attorney General of the 6 State of Connecticut, Hartford, 7 CT 8 Appeal from a judgment of the United States District Court for the District 9

of Connecticut ( Jeffrey A. Meyer , J udge ). 10
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 11

AND DECREED that the judgment of the D istrict C ourt is AFFIRMED

. 12

Plaintiff Luis Ortiz , proceeding pro se , appeals from a March 1, 2022 13
judgment of the United States District Court for the District of Connecticut 14
( Meyer , J. ) dismissing his claims against the State of Connecticut and its 15
Department of Transportation (“DOT”) for retaliation under Title VII of the Civil 16
Rights Act of 1964, 42 U.S.C. § 2000e

. We assume the parties’ familiarity with 17
the underlying facts and the record of prior proceed ings, to which we refer only 18
as necessary to explain our decision to affirm

. 19
In 2019 Ortiz, represented by counsel, sued the DOT, his employer, 20
alleging that he had been subjected to discrimination on the basis of his race. 213 The D istrict C ourt granted the DOT’s unopposed motion to dismiss on October 1

23, 2019. In 2020 Ortiz again sued the DOT , this time for retaliation, alleging 2
that he was suspended and denied a pay raise because he had filed the 2019 3

law suit and complained of discriminatory conduct

. The District Court granted 4
summary judgment in favor of the DOT, finding that the DOT had proffered 5
legitimate, non

- retaliatory r easons for suspending Ortiz and denying him a pay 6

raise, and that Ortiz had failed to offer admissible evidence showing that these 7

reasons were a pretext for retaliation

. 1 8
We review a grant of summary judgment de novo , “resolv[ing] all 9
ambiguities and draw[ing] all inferences against the moving party.” Garcia v. 10
Hartford Police Dep’t , 706 F.3d 120, 126

– 27 (2d Cir. 2013). “Summary judgment 11
is proper only when, construing the evidence in the light most favorable to the 12

non

- movant, ‘there is no genuine dispute as to any material fact and the movant 13

1 In his opening brief, Ortiz describes various racially discriminatory incidents that in his earlier lawsuit he allege d occurred while he was employed at DOT. Ortiz asks us to “take judicial notice” of his allegations in th e earlier lawsuit. Appellant’s Br. 18

. We decline to do so because, at the summary judgment stage, Ortiz may not rely on allegations in a complaint but instead must adduce admissib le evidence in support of his claims

. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986).4 is entitled to judgment as a matter of law.’” Doninger v. Niehoff , 642 F.3d 334, 1
344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). 2

“To establish a prima facie ca se of unlawful retaliation u nder Title VII, an 3
employee must show that (1) [ ]he was engaged in protected activity; (2) the 4
employer was aware of that activity; (3) the employee suffered a materially 5
adverse action; and (4) there was a causal connection between the protected 6
activity and that adverse action. ” Rivera v. Rochester Genesee Re g’l Transp. 7

Auth. , 743 F.3d 11, 24 (2d Cir. 2014) (quotation marks omitted)

. If the plaintiff 8
makes out a prima facie case of retaliation, “ the burden shifts to the employer to 9
give a legitimate, non

- discriminatory reason for its actions.” Kirkland v. 10
Cablevision Sys. , 760 F.3d 223, 225 (2d Cir. 2014). “If the employer does so, t he 11

burden then shifts back to the plaintiff to show that the employer’s explanation is 12
pretext for .

. . retaliation.” Id. To meet this burden, the plaintiff must show 13
“that the adverse action would not have occurred in the absence of the retaliatory 14

motive.” Zann Kwan v. Andalex Grp. LLC , 737 F.3d 834, 846 (2d Cir. 2013)

. 15

Like the District Court, we assume without deciding that Ortiz established 16
a prima facie case of retaliation . We agree with the District Court, however, that 175 the DOT proffered legitimate, non

- retaliatory reasons for the adverse actions

. 1

First, the DOT adduced evidence that Ortiz was suspended and transfe rred after 2

he was found to have violated several DOT policies , including refusing a direct 3
order from his supervisor and repeatedly posting inappropriate notes on his 4

locker

. Second, the DOT also adduced evidence that Ortiz was denied a pay 5
raise because he received an unsatisfactory performance review after being 6
suspended twice in March 2019 , and that the process it employed in denying the 7
pay raise complied with the collecti ve bargaining agreement between the DOT 8

and Ortiz’s union

. O rtiz did not adduce admissible evidence demonstrating 9

that the DOT’s proffered reasons were a pretex t for retaliation

. 10
Urging a contrary conclusion o n appeal, Ortiz points to statements made 11
by two of his supervisors, Stephen Moran and Lino Bruno, that he claims direct ly 12
evidence retaliatory intent and show that DOT’s explanations are pretextual

. 13
We are not persuaded. First, Ortiz relies on Bruno’s offer of a job as crew lea der 14
in exchange for withdrawing the 2019 lawsuit. B ut b ecause Ortiz did not rely 15

on this offer in the District Court as evidence of retaliation, he has forfeited the 16

argument. See Virgilio v. City of New York , 407 F.3d 105, 116 (2d Cir. 2005) (“In 176 general we refrain from passing on issues not raised below.” (quotation marks 1
omitted)). E ven if we considered the argument on the merits , Bruno’s statement 2
does not qualify as direct evidence of retaliation because , as the District Court 3
concluded and Ortiz does not contest on appeal, “there is no evidence connecting 4
Bruno to Ortiz’s discipline. ” App’x 136. See Holcomb v. Iona Coll. , 521 F.3d 5
130, 143 (2d Cir. 2008) (“[A] Title VII plaintiff is entitled to succeed .

. . so long as 6
the individual shown to have the impermissible bias played a meaningful role in 7
the [decision

- making] process.” (quotation marks omitted)). 8
Ortiz likewise points to Moran’s statement that “people have tried this 9

before and found th emselves without a job

. ” Appellant’s Br. 3 ; App’x 136

. We 10
agree with the District Court that t he statement , standing alone, is not sufficient 11

to show that the DOT’s proffered reasons for disciplining Ortiz were a pretext for 12

retaliation and that “the desire to retaliate was the but

- for cause of the challenged 13
employment action.” Ya

- Chen Chen v. City Univ. of New York , 805 F.3d 59, 70 14
(2d Cir. 2015) (quotation marks omitted). T here is no evidence that the 15
investiga tion into Ortiz’s inappropriate notes or his subsequent suspension was 16
in any way out of the ordinary or disproportionate, in light of the egregious 177 nature of his actions and his prior disciplinary record

. Although Moran was the 1

final decisionmaker with r espect to Ortiz ’s unsatisfactory annual service rating, 2

that rating was based on three documented disciplinary infractions that Ortiz 3
undisputedly incurred in March 2019 , before the first lawsuit was filed

. 2 And 4
Moran’s subsequent decision to deny Ortiz an annual raise because of the 5
unsatisfactory rating comported with DOT policy and the collective bargaining 6

agreement. In summary, Ortiz does not point to, nor do we identify, any 7
“weaknesses, implausibilitie s, inconsistencies, or contradictions in the 8
employer’s proffered legitimate, nonretaliatory reasons for its action .” Zann 9

Kwan , 737 F.3d at 846

. 10
Finally, Ortiz points to the fact that other employees who had not engaged 11
in protected activity were not disciplined for egregious misconduct. But Ortiz 12
did not name these comparators in his counseled opposition to the DOT’s motion 13

for summary judgment in the D istrict C ourt. H e has therefore forfeited this 14

2 Ortiz received a one

- day suspension on March 5, 2019 for allowing one of his required certifications to expire , a written warning on March 12 , 2019 for a violation of the department’s “wheel chock policy” that occurred on February 13, and a two

- day suspension on March 21 , 2019 for violating the “ backing pol icy” when he backed a truck out of a garage bay without a spotter.8 argument. See Doe v. Trump Corp. , 6 F.4th 400, 410 (2d Cir. 2021)

. 1

We have considered Ortiz’s remaining arguments and conclude that they 2
are without merit. For the foregoing reasons, the judgment of the District Court 3

is AFFIRMED. 4

FOR THE COURT: 5 Catherine O = Hagan Wolfe, Clerk of Court 6 7