Doru Tsaganea v. City University of New York, Baruch College ( 2011 )

10-2322-cv
Doru Tsaganea v. City University of New York, Baruch College
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 13th day of September, two thousand eleven.
PRESENT:
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
EDWARD R. KORMAN,
District Judge.*
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DORU TSAGANEA,
Plaintiff-Appellant,
-v.- 10-2322-cv
THE CITY UNIVERSITY OF NEW YORK,
BARUCH COLLEGE,
Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT: DORU TSAGANEA, pro se,
New York, New York.
FOR DEFENDANT-APPELLEE: ANN P. ZYBERT, Assistant Solicitor
General, for Eric T. Schneiderman,
Attorney General of the State of
New York, New York, New York.
*
The Honorable Edward R. Korman, of the United States
District Court for the Eastern District of New York, sitting by
designation.
Appeal from the United States District Court for the
Southern District of New York (Batts, J.). UPON DUE
CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the judgment of the district court is AFFIRMED.
Plaintiff-appellant Doru Tsaganea appeals from the
district court's judgment entered March 25, 2010, granting
summary judgment to defendant-appellee City University of New
York, Baruch College ("CUNY"), dismissing his claims for (1)
national origin and religious discrimination, and (2)
retaliation, all brought pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII").1
We assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We review the district court's grant of summary
judgment de novo. See Miller v. Wolpoff & Abramson, L.L.P., 321
F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823 (2003).
Summary judgment is appropriate only if "there is no genuine
dispute as to any material fact" and the moving party "is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
see Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir.
2011). In determining whether genuine issues of material fact
1
Tsaganea's complaint also included a cause of action
for age discrimination under the Age Discrimination and
Employment Act (the "ADEA"). On appeal, however, Tsaganea does
not argue that his age discrimination claim was improperly
dismissed by the district court. Accordingly, we deem the ADEA
claim abandoned. See LoSacco v. City of Middletown, 71 F.3d 88,
92-93 (2d Cir. 1995) (claims raised below but not raised on
appeal are abandoned, even as to pro se litigants).
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exist, we must "resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought." Terry v. Ashcroft, 336 F.3d 128, 137 (2d
Cir. 2003) (internal quotation marks omitted).
We have conducted an independent review of the record
in light of these principles. We affirm the district court's
grant of summary judgment dismissing Tsaganea's discrimination
claims for substantially the reasons articulated by the district
court. Specifically, Tsaganea did not present any concrete
evidence to support the inference that CUNY's decision not to
hire him for a full-time position was influenced by his national
origin (Romanian) or his religion (Christianity).
To the contrary, the record shows, and a reasonable
jury could only find, that Tsaganea was not selected for the
full-time position because several other candidates were more
qualified. Ninety-three applications were submitted for the
position. After nineteen of the applicants (including Tsaganea)
were discussed at the department meeting, five were selected for
an interview. Tsaganea was not one of the five. As he conceded,
he had fewer publications than each of the interviewed
candidates, and his references were not as strong. Although
Tsaganea argued that these factors should not have been
dispositive, the court's role is not to second guess CUNY's
judgment absent some evidence to raise an issue of fact as to a
discriminatory motive. See Byrnie v. Town of Cromwell, Bd. of
-3-
Educ., 243 F.3d 93, 103 (2d Cir. 2001); Scaria v. Rubin, 117 F.3d
652, 654-55 (2d Cir. 1997).
We also affirm the district court's grant of summary
judgment dismissing Tsaganea's retaliation claim. Tsaganea had
held the substitute assistant professor position for the 2002-
2003 school year while the department conducted its search for a
full-time faculty member. When the candidate to whom CUNY
eventually offered the full-time position declined the offer in
or about May 2003, the department needed another one-year
substitute for the 2003-2004 school year while it searched for
another full-time candidate. Tsaganea applied for the substitute
assistant professor position for the 2003-2004 school year on May
12, 2003, shortly after he filed a complaint with the State
Division of Human Rights ("SDHR") on April 8, 2003.2 A week
later, Tsaganea wrote a second letter to CUNY essentially
threatening to sue for retaliation if he were not hired.
Tsaganea was not hired, and the position was offered to someone
else. Tsaganea contends that this decision was retaliation for
filing his SDHR complaint.
At the summary judgment stage in a retaliation case,
the ultimate question is whether the plaintiff has presented
sufficient evidence to permit a reasonable jury to infer that
retaliation played a part in the defendant's adverse employment
decision. Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 122
2
The April 8 complaint alleged discrimination based on
age and national origin. It was amended on April 22, 2003 to
include religion.
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(2d Cir. 1996); see James v. New York Racing Ass'n, 233 F.3d 149,
155-56 (2d Cir. 2000). A plaintiff must "point to evidence
sufficient to permit an inference . . . that retaliation was a
'substantial reason for the adverse employment action.'" Kaytor
v. Elec. Boat Corp., 609 F.3d 537, 553 (2d Cir. 2011) (quoting
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005) (emphasis added); see Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714 (2d Cir. 1996) (plaintiff "obliged to produce
not simply some evidence, but sufficient evidence" that
employer's proffered reasons are false) (internal quotation marks
omitted). "[I]t is not enough . . . to disbelieve the employer;
the factfinder must believe the plaintiff's explanation of
[retaliation]." James, 233 F.3d at 156 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).
We hold, on the record before us, that no reasonable
jury could conclude that CUNY's motive for not hiring Tsaganea
for the 2003-2004 substitute assistant professor position was
retaliatory. First, Tsaganea's earlier appointment as a
substitute assistant professor in 2002 was only for one year, and
he had no right or entitlement to the substitute assistant
professor position for 2003-2004. Moreover, it is undisputed
that Thomas Halper, the department chair, told Tsaganea well
before his SDHR complaint that he did not "have any chance of
success in the academy," and should "look for a job elsewhere."
(Tsaganea Dep. 49-50.) Tsaganea did not point to any evidence in
the record that Halper's views were motivated by retaliation.
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Second, CUNY offered legitimate, non-retaliatory
reasons for not hiring Tsaganea for the 2003-2004 position, and
Tsaganea failed to put forth sufficient evidence that those
reasons were pretextual. CUNY asserted that it did not rehire
Tsaganea because students had informed Halper that Tsaganea was
using class time to encourage students to support his application
for the full-time position. CUNY also maintained that Tsaganea's
grading standards were too low. Out of 150 students, he had
given 93 A's and 39 A-minuses.
Tsaganea did not deny that he used class time to
request that the students lobby on his behalf. He only argued
that any such time was minimal. While reasonable minds might
differ as to the appropriateness of this behavior, there is
nothing in the record to indicate that CUNY's "value judgment"
was a pretext for retaliation. See Scaria, 117 F.3d at 654-55.
As for CUNY's assertion that his grading standards were
too low, Tsaganea argued that it was a pretext because he had
been grading the same way for years and Halper had never before
confronted him about it. In view of the extent of grade
inflation -- 132 of 150 students received an A or A-minus -- no
reasonable jury could find that this proffered reason was
pretextual. Moreover, Tsaganea acknowledged that he might have
given the students high grades "to thank [them] for what they did
for [him]." (Pl.'s Br. 31). In other words, Tsaganea conceded
that he might have given his students high grades to thank them
for lobbying for him.
Third, while the temporal proximity of Tsaganea's SDHR
filing and CUNY's decision not to offer him the 2003-2004
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position arguably created an inference of retaliation for the
purpose of establishing a prima facie case, "without more, such
temporal proximity is insufficient to satisfy appellant's burden
to bring forward some evidence of pretext." El Sayed v. Hilton
Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam).
Looking at the record as a whole, we conclude that
Tsaganea did not meet his burden of putting forth "sufficient
evidence" that CUNY's decision not to hire him as a substitute
assistant professor for the 2003-2004 school year was motivated
by retaliation. Van Zant, 80 F.3d at 714. Indeed, no reasonable
jury could have found that retaliation was a "substantial reason"
for the adverse action. See Kaytor, 609 F.3d at 553; James, 233
F.3d at 156.
We have considered appellant's other arguments on
appeal and have found them to be without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED in its
entirety.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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