17-1114-cv Tu Ying Chen v. Suffolk Cty. Cmty. Coll. 

## 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 (W ITH THE NOTATION 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, held at the Thurgood Marshall United States Courthouse, 40 Fo ley Square, in the City of New York, on the 24 th day of May, two thousand eighteen.

Present: ROBERT D. SACK, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges .

T U Y ING C HEN , Plaintiff-Appellant,

v. No. 17-1114-cv

S UFFOLK C OUNTY C OMMUNITY C OLLEGE AND C OUNTY OF S UFFOLK , N EW Y ORK , Defendants-Appellees.

Appearing for Plaintiff-Appellant : T HOMAS R ICOTTA , Ricotta & Marks, P.C., Long Island City, N.Y. Appearing for Defendant-Appellees : D REW W. S CHIRMER , Assistant Suffolk County Attorney, for Dennis M. Brown, Suffolk County Attorney, Hauppauge, N.Y.

________________________________________________17-1114-cv Tu Ying Chen v. Suffolk Cty. Cmty. Coll.

2 Appeal from a judgment of the United States District Court for the Eastern District of New York (Azrack, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-Appellant Tu Ying Chen (“Plaintiff”) brought di scrimination and retaliation claims against Defendants-Appellees Suffolk Co unty Community College and County of Suffolk, New York (collectively “Defe ndants”), under the Age Discrimination and Employment Act of 1967, 29 U.S.C. §§ 621–634 (“ADEA”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–e17 (“Title VII”). On app eal, Plaintiff claims the district court erred in its decision to grant Defendants’ motion for summa ry judgment by construing the f acts in a light most favorable to the movant. We assume the parties’ familiarity with the underlying facts, the procedural history, the district court’s rulings, and the arguments presented on appeal. I. Standard of Review We review de novo a district court’s grant of summar y judgment, construing the facts, resolving all ambiguities, and drawing all reasonable factual inferences, in the light most favorable to the non-moving party. Nick’s Garage, Inc. v. Progressive Cas. Ins. Co. , 875 F.3d 107, 113 (2d Cir. 2017); Walsh v. N.Y.C. Hous. Auth. , 828 F.3d 70, 74 (2d Cir. 2016). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Walsh , 828 F.3d at 74. A genuine dispute of material fact exists where th e evidence is such that a reasonable jury could decide in the non-movant’s favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986) (requiring more than “the mere ex istence of a scintilla of eviden ce in support of the plaintiff’s position”). When a plaintiff alleges discrimina tion or retaliation under the ADEA and Title VII,3 courts employ the familiar, three-step “ burden-shifting” framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802–03 (1973)—requiring the plaintiff to bear the initial burden of establishing a prima facie case; if the plaintiff does so, th e burden shifts to the defendant to provide a legitimate, non-discriminatory reason for taking the adverse employment action; with the final burden shifting back to the plaintiff to demonstrate that the defendant’s legitimate reasons were, in fact, pretextual. Bucalo v. Shelter Isl and Union Free Sch. Dist. , 691 F.3d 119, 128-29 (2d Cir. 2012) (applying McDonnell Douglas to discrimination and retaliation claims under both ADEA and Title VII). II. Plaintiff’s Discrimination Claim Plaintiff argues that the dist rict court erred when it f ound that no genuine dispute of material fact existed as to whether Defendants’ actions were discriminato ry based on age, gender, or national origin. Plaintiff’ s arguments are unpersuasive.
At McDonnell Douglas step one, the district court assumed without deciding that Plaintiff met her burden of establishing a pr ima facie case; we do the same.
At McDonnell Douglas step two, Defendants met their burden to provide legitimate, nondiscriminatory reasons for Plaintiff’s suspension. See United States v. Brennan , 650 F.3d 65, 93 (2d Cir. 2011). The heart of the matter here is a 2010 employment Stipulation, negotiated between and signed by the parties, that provided Plaintiff a means to retain her job after previous misconduct. Under the Stipulation, both parties ag reed that violations—inc luding failure to enter leave reports on time—would result in Plaintiff’s suspension or termination. Here, Defendants showed: (1) Plaintiff failed to co mply with Defendants’ establishe d rules and proced ures, including the Stipulation; and (2) Plaintiff failed timely to submit leave reports allocating personal or sick leave for her unauthorized absences . In providing these reasons for suspending Plaintiff without4 pay for 30 days, Defendants have met their burden to show a legitimate, non-discriminatory reason for their actions. See Bickerstaff v. Vassar Coll. , 196 F.3d 435, 446 (2d Cir. 1999).
At McDonnell Douglas step three, Plaintiff’s discrimina tion claim fails. Plaintiff did not demonstrate that Defendants’ reasons for suspensi on were false or were otherwise a pretext for discrimination. See St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 515 (1993); Back v. Hastings on Hudson Union Free Sch. Dist. , 365 F.3d 107, 123 (2d Cir. 2004). On appeal, Plaintiff argues that summary judgment was improper and that there were th ree “genuine issues of material fact to be resolved by a jury.” See Appellant’s Br., p. 21. First, Plaintiff argues that Defendants ma de comments implying the Defendants were discriminating against her based on her age. She bases this argument on language from the Physical Sciences Department Chair’s depositi ons and 2010 emails that were entered into evidence. Scrutinized in context, however, none of these comments would indicate to a reasonable jury a discriminatory animus towards Plaintiff. See Gallo v. Prudential Re sidential Servs., Ltd. , 22 F.3d 1219, 1224–25 (2d Cir. 1994). Second, Plaintiff argues she did not know that she violated De fendants’ directives. Even accepting that as true, at issu e before the Court is not Plaintiff’s reasons for viola ting directives but Defendants’ reasons for suspending Plaintiff. Under the Stipulation, Plaintiff’s failure to teach the classes or account for her otherwise unautho rized absences provide d Defendants sufficient reasons to suspend her. Defendants, therefore, have provided a legiti mate, non-discriminatory reason for Plaintiff’s suspension, McDonnell Douglas , 411 U.S. at 802–03, which is undisturbed by Plaintiff’s assertion she was ignorant of the directives. Contrary to Plaintiff’s argument, no evidence exists of discriminatory pretex t in Defendants’ disc iplinary decision. Plaintiff also claims that pr etext is demonstrated through al leged procedural irregularities in Defendants’ class rescheduling and disciplinary processes. Nothing material in the record5 indicates an irregular practice to reschedule Plaintiff’s classes thatimplies discrimination. Likewise, the evidence does not support Plaintiff’s claim that Defendants improperly administered discipline under the Stipulation. Even if Defendants deviated procedurally in some way, none of those deviations reasonably affected their decision or raise the specte r of a discriminatory pretext. Weinstock v. Columbia Univ. , 224 F.3d 33, 45 (2d Cir. 2000). Considering the record as a whole, and construi ng the facts in the light most favorable to the Plaintiff, we agree with the district cour t that no reasonable juror would be able to find Defendants’ suspension of Plaintiff discriminatory. Walsh , 828 F.3d at 74. III. Plaintiff’s Retaliation and 42 U.S.C. § 1983 Claim Plaintiff makes a passing reference to two additional, undeveloped arguments. First, Plaintiff briefly mentions 42 U.S.C. § 1983 for the fi rst time at the end of her Appellant brief. Because she neglects to advance any § 1983 argument , Plaintiff forfeits this claim on appeal. Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998). Second, concerning Plaintiff’s retaliation claim, she has merely incorporated the argument ma de in the district court by reference, which is insufficient to raise it on appeal. Id. Even if we were to consider the retaliation claim evidence, we note that Plaintiff has not offered any r eason to challenge Defendants’ legitimate, nonretaliatory reasons for their actions. Gorzynski v. Jet Blue Airways Corp. , 596 F.3d 93, 110 (2d Cir. 2010). IV. Conclusion We have considered Plaintiff’s remaining argum ents and find them to be without merit.
We AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk