Ramlal-Nankoe v. Ithaca College , 591 F. App'x 23 ( 2015 )

14-576-cv
Ramlal-Nankoe v. Ithaca 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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of January, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 MARGO RAMLAL-NANKOE,
13 Plaintiff-Appellant,
14
15 -v.- 14-576
16
17 ITHACA COLLEGE,
18 Defendant-Appellee.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: ROBERT RAMBADADT, The Rambadadt
22 Law Office, New York, New York.
23
24 FOR APPELLEE: SUBHASH VISWANATHAN, Bond,
25 Schoeneck & King, PLLC,
26 Syracuse, New York.
27
28 Appeal from a judgment of the United States District
29 Court for the Northern District of New York (Suddaby, J.).
30
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
2 AND DECREED that the judgment of the district court be
3 AFFIRMED.
4
5 Margo Ramlal-Nankoe appeals from the judgment of the
6 United States District Court for the Northern District of
7 New York (Suddaby, J.) granting summary judgment in favor of
8 Ithaca College and granting the College’s motion for
9 attorney’s fees incurred in connection with a motion to
10 compel discovery. We assume the parties’ familiarity with
11 the underlying facts, the procedural history and the issues
12 presented for review.
13
14 Upon de novo review, we conclude (for substantially the
15 reasons stated by the district court) that the grant of
16 summary judgment in favor of the College was proper.1 Rojas
17 v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d
18 Cir. 2011) (per curiam).
19
20 With respect to Ramlal-Nankoe’s religious
21 discrimination claim (to the extent one is even asserted),
22 the EEOC complaint does not assert discrimination based on
23 religion; she therefore failed to exhaust administrative
24 remedies, which is a precondition to suit. Holtz v.
25 Rockefeller & Co., 258 F.3d 62, 83-84 (2d Cir. 2001)
26 (affirming dismissal of religious discrimination “about
27 which the EEOC charge [was] entirely silent”). In addition,
28 Ramlal-Nankoe has not come forward with any evidence to
29 establish even a prima facie case of religious
30 discrimination. See Zahorik v. Cornell Univ., 729 F.2d 85,
31 92 (2d Cir. 1984); see also Tori v. Marist Coll., 344 F.
32 App’x 697, 699-700 (2d Cir. 2009) (summary order) (observing
33 that “courts are understandably reluctant to review the
34 merits of a tenure decision” and concluding that plaintiff’s
35 “discrimination claim fails because he has introduced no
36 evidence to suggest that the denial of tenure was motivated,
37 at least in part, by discrimination on the basis of race,
38 gender, marital status, or religion” (internal quotation
39 marks omitted)).
40
41 Ramlal-Nankoe argues that she made no election-of-
42 remedies with respect to the Tompkins County Human Rights
43 Commission and New York Human Rights Law. This argument is
1
Ramlal-Nankoe does not press her age discrimination
claim on appeal.
2
1 contradicted by the record. “The District Court properly
2 ruled that [these claims were] barred on the basis of
3 election of remedies, in view of N.Y. Exec. Law § 297(9),
4 which, with certain exceptions not applicable here,
5 precludes resort to courts after claims have been filed with
6 a local commission on human rights.” Desardouin v. City of
7 Rochester, 708 F.3d 102, 106 (2d Cir. 2013).
8
9 As to the claims for breach of contract and for breach
10 of the implied covenant of good faith: “under New York law,
11 a university faculty member’s claims based upon the rights
12 or procedures found in college manuals, bylaws and handbooks
13 may only be reviewed by way of a special proceeding under
14 Article 78 of New York’s CPLR in New York State Supreme
15 Court.” Hengjun Chao v. Mount Sinai Hosp., 476 F. App’x
16 892, 895 (2d Cir. 2012) (summary order) (internal quotation
17 marks omitted).
18
19 The district court properly declined to invoke the
20 continuing violation doctrine to save Ramlal-Nankoe’s
21 untimely claims under Title VII and Section 1981. That
22 doctrine is inapplicable to “[d]iscrete acts such as
23 termination [and] failure to promote,” which “are easy to
24 identify.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
25 101, 114 (2002) (reversing application of continuing
26 violations doctrine). “Each incident of discrimination and
27 each retaliatory adverse employment decision constitutes a
28 separate actionable unlawful employment practice.” Id.
29 (internal quotation marks omitted).
30
31 Ramlal-Nankoe’s remaining, timely discrimination and
32 retaliation claims are analyzed under the familiar McDonnell
33 Douglas framework. McDonnell Douglas Corp. v. Green, 411
34 U.S. 792, 802-04 (1973). Assuming Ramlal-Nankoe established
35 a prima facie case, the College’s proffered reasons for its
36 decision to deny her tenure were not shown to be pretextual.
37 See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
38 2000) (“To get to the jury, it is not enough to disbelieve
39 the employer; the factfinder must also believe the
40 plaintiff’s explanation of intentional discrimination.”
41 (internal quotation marks and alterations omitted));
42 Bickerstaff v. Vassar Coll., 196 F.3d 435, 455-56 (2d Cir.
43 1999) (upholding grant of summary judgment to college
44 because tenure candidate did not satisfy posted criteria for
45 promotion); Zahorik, 729 F.2d at 93 (“[S]tatements of peer
46 judgments as to departmental needs, collegial relationships
3
1 and individual merit may not be disregarded absent evidence
2 that they are a facade for discrimination.”).
3
4 Finally, the district court did not abuse its
5 discretion in the award of attorney’s fees to the College.
6 Barbour v. City of White Plains, 700 F.3d 631, 634 (2d Cir.
7 2012) (per curiam). The district court cited Ramlal-
8 Nankoe’s failure to object to the magistrate judge’s award
9 of fees. In any event, the district court noted its
10 agreement, observing that Ramlal-Nankoe “offered no
11 substantial justification for the delay in making the
12 requested disclosure” and found no other circumstances that
13 would make such an award unjust.
14
15 For the foregoing reasons, and finding no merit in
16 Ramlal-Nankoe’s other arguments, we hereby AFFIRM the
17 judgment of the district court.
18
19 FOR THE COURT:
20 CATHERINE O’HAGAN WOLFE, CLERK
21
4