Idrees v. City of New York , 388 F. App'x 62 ( 2010 )

09-1458-cv
Idrees v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29 th day of July, two thousand and ten.
5
6 PRESENT: BARRINGTON D. PARKER,
7 RICHARD C. WESLEY,
8 Circuit Judges,
9 RICHARD W. GOLDBERG,
10 Judge. *
11
12
13 MOHAMMAD IDREES,
14
15 Plaintiff-Appellant,
16
17 -v.- 09-1458-cv
18
19 CITY OF NEW YORK,
20
21 Defendant-Appellee. **
22
23
24
*
The Honorable Richard W. Goldberg, United States Court of
International Trade, sitting by designation.
**
The Clerk of the Court is respectfully directed to amend the official
caption of this appeal to conform to the caption of this summary order.
1 FOR APPELLANT: MOHAMMAD IDREES, pro se, New
2 York, NY.
3
4 FOR APPELLEE: KRISTIN M. HELMERS (Alan G.
5 Krams, of counsel), for Michael
6 A. Cardozo, Corporation Counsel
7 of the City of New York, New
8 York, NY.
9
10 Appeal from the United States District Court for the
11 Southern District of New York (Kaplan, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that this appeal is DISMISSED.
15 Pro se appellant Mohammad Idrees appeals the district
16 court’s grant of summary judgment in favor of the City of
17 New York. The district court dismissed appellant’s
18 discrimination claims under Title VII of the Civil Rights
19 Act of 1964, 42 U.S.C. § 2000e et. seq., and the Age
20 Discrimination in Employment Act, 29 U.S.C. §§ 621-34; both
21 sets of claims were based on discrete theories of failure to
22 promote, retaliation, and a hostile work environment. See
23 Idrees v. City of New York, No. 04 Civ. 2197 (LAK) (GWG),
24 2009 WL 142107 (S.D.N.Y. Jan. 21, 2009). 1 We presume the
1
In a prior order not at issue in this appeal, the
district court also adopted the magistrate judge’s
recommendation that: (1) appellant’s claims were time-barred
to the extent they were based on conduct prior to April 13,
2002, and (2) his state-law tort claim should be dismissed.
See Idrees v. City of N.Y. Dep’t of Parks & Recreation, No.
04 Civ. 2197 (LAK) (GWG), 2005 WL 1026027 (S.D.N.Y. May 3,
2
1 parties’ familiarity with the facts, procedural history, and
2 issues in this appeal.
3 In granting summary judgment in favor of appellee, the
4 district court adopted the January 21, 2009 Report and
5 Recommendation of a magistrate judge (the “R&R”). The R&R
6 stated that “[i]f a party fails to file timely objections,
7 that party will not be permitted to raise any objections to
8 this Report and Recommendation on appeal.” Idrees, 2009 WL
9 142107, at *14 (citing Thomas v. Arn, 474 U.S. 140 (1985)).
10 Thus, the magistrate judge provided the requisite “express
11 warning” of the consequences of the failure to file
12 objections. Caidor v. Onondaga County, 517 F.3d 601, 602-03
13 (2d Cir. 2008). Nevertheless, appellant, who was
14 represented by counsel during his opposition to the motion
15 for summary judgment, failed to file objections. Therefore,
16 appellant has “waive[d] any further judicial review of the
17 findings contained in the report.” Spence v.
18 Superintendent, Great Meadow Corr. Facility, 219 F.3d 162,
19 174 (2d Cir. 2000).
20 Although we are free to “excuse [this] default in the
21 interests of justice,” id. (internal quotation marks
2005).
3
1 omitted), we decline to do so here because the waived
2 arguments presented in this appeal lack merit. 2 With
3 respect to appellant’s failure to promote claims, our
4 independent review of the record confirms that appellant
5 failed to adduce sufficient evidence to allow a fact finder
6 to conclude that he “was rejected under circumstances which
7 give rise to an inference of unlawful discrimination.”
8 Aulicino v. N.Y. Dep’t of Homeless Servs., 580 F.3d 73, 80
9 (2d Cir. 2009) (internal quotation marks omitted). We reach
10 that conclusion with respect to each promotion that
11 appellant contends that he was denied after April 13, 2002.
12 See Idrees, 2009 WL 142107, at *10 n.3.
13 Appellant’s hostile work environment claims are
14 defective for a similar reason. Although we consider “the
15 entire scope of a hostile work environment claim, including
16 behavior alleged outside the statutory time period,”
17 McGullam v. Cedar Graphics, Inc., --- F.3d ----, No. 08-
18 4661-cv, 2010 WL 2366026, at *4 (2d Cir. June 15, 2010)
19 (internal quotation marks omitted), a jury could not
20 conclude from this record that appellant’s workplace was
2
We likewise conclude, for similar reasons, that it
would be futile to remand the case in order to allow
appellant to file objections to the Report and
Recommendation.
4
1 “permeated with discriminatory intimidation” to an extent
2 that “alter[ed] the conditions of [his] employment.”
3 Aulicino, 580 F.3d at 82 (internal quotation marks omitted).
4 Finally, appellant’s retaliation claim was properly
5 dismissed because there was insufficient evidence of a
6 causal connection between his protected activity and the
7 adverse employment decisions, i.e., the denied promotions.
8 See e.g., Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.
9 1999).
10 We therefore conclude that appellant waived his ability
11 to seek judicial review of the magistrate judge’s R&R, and
12 that the circumstances of this case do not warrant relief
13 from the consequences of that waiver. Accordingly, this
14 appeal is hereby DISMISSED.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
5