Syken v. State of New York ( 2020 )

19-3392-cv
Syken v. State of New York
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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 2nd day of October, two thousand twenty.
4
5 PRESENT:
6 DENNIS JACOBS,
7 GERARD E. LYNCH,
8 MICHAEL H. PARK,
9 Circuit Judges.
10 _____________________________________
11
12 Arthur Syken,
13
14 Plaintiff-Appellant,
15
16 v. 19-3392
17
18 State of New York, New York State Division
19 of Housing and Community Renewal, AKA
20 New York State Homes and Community
21 Renewal, RuthAnne Visnauskas, Executive
22 Deputy Commissioner of New York State
23 Homes and Community Renewal,
24
25 Defendants-Appellees.
26 _____________________________________
27
28 FOR PLAINTIFF-APPELLANT: JOHN SCOLA, Law office of John A. Scola,
29 PLLC, New York, NY.
30
1 FOR DEFENDANTS-APPELLEES: ERIC R. HAREN, Special Counsel (Barbara
2 D. Underwood, Solicitor General, and
3 Steven C. Wu, Deputy Solicitor General,
4 on the brief), for Letitia James, Attorney
5 General of the State of New York,
6 New York, NY.
7
8 Appeal from a judgment of the United States District Court for the Eastern District of New
9 York (Amon, J.).
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
11 DECREED that the judgment of the district court is AFFIRMED.
12 Arthur Syken brought this action against his longtime employer, the New York State
13 Division of Housing and Community Renewal, the Division’s Commissioner, and the State of New
14 York (collectively, “DHCR”), alleging that they discriminated against him by declining to promote
15 him on account of his religion in violation of Title VII, 42 U.S.C. § 2000e. The district court
16 granted DHCR’s motion for summary judgment based on the conclusion that Syken would be
17 unable to show that DHCR’s stated non-discriminatory reasons for not promoting him were
18 pretextual. Syken now appeals. For the reasons stated in this order, we affirm the judgment of the
19 district court. We assume the parties’ familiarity with the underlying facts, procedural history, and
20 issues on appeal.
21 Under the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
22 “[o]nce an employee makes a prima facie case of either discrimination or retaliation, the burden
23 shifts to the employer to give a legitimate, non-discriminatory reason for its actions. If the
24 employer does so, the burden then shifts back to the plaintiff to show that the employer’s
25 explanation is a pretext for race discrimination or retaliation.” Kirkland v. Cablevision Sys., 760
26 F.3d 223, 225 (2d Cir. 2014) (citation omitted). For cases like this one, in which the employer
27 meets its burden to proffer a legitimate and non-discriminatory rationale, “to defeat summary
2
1 judgment the employee’s admissible evidence must show circumstances that would be sufficient
2 to permit a rational finder of fact to infer that the employer’s employment decision was more likely
3 than not based in whole or in part on discrimination.” Id. (quoting Terry v. Ashcroft, 336 F.3d
4 128, 138 (2d Cir. 2003)). Because Syken failed to raise a triable issue that any of the reasons given
5 for his promotion denials was pretextual, we conclude that the district court properly granted
6 DHCR’s motion for summary judgment.
7 First, DHCR explained that Syken was passed over for the Major Capital Improvements
8 job with the Office of Rent Administration (“ORA”) (No. 36-2015) because he had an “[e]rroneous
9 and outdated resume,” “[n]o real supervision experience,” and he “exaggerated [his] experience.”
10 Contemporaneous notes memorialized that the individual who was hired instead of Syken
11 possessed greater supervisory experience and presented herself in her interview without
12 exaggeration or embellishment. Syken quibbles that his supervisory experience was more relevant
13 than that of the employee who was chosen; “but the court must respect the employer’s unfettered
14 discretion to choose among qualified candidates.” Byrnie v. Town of Cromwell, Bd. of Educ., 243
15 F.3d 93, 103 (2d Cir. 2001) (citation omitted). Indeed, “[o]ur role is to prevent unlawful hiring
16 practices, not to act as a super personnel department that second guesses employers’ business
17 judgments.” Id. (cleaned up).
18 Second, DHCR explained that none of the applicants for the Luxury Decontrol position
19 with the ORA (No. 37-2015) had the requisite knowledge of database software or experience
20 supervising and training staff. Although Syken attested to an anti-Semitic comment made by his
21 second-level supervisor, Sarah McCray, he provides no evidence that McCray was the
22 decisionmaker. That was Deputy Commissioner Woody Pascal, who wrote in an email that
23 “[r]ewarding long-term employees by promoting them into positions they are not well-suited for
3
1 is unfair to the employee and to the agency.” Syken did not dispute that he lacked experience with
2 the database software and thus raises no inference of pretext.
3 Third, DHCR explained that the person hired for the Owner Evictions Unit position with
4 the ORA (No. 38-2015) was already functionally performing the work and was widely liked within
5 the unit, justifying an in-unit promotion without a broader search. Syken offers no evidence that
6 the decisionmakers were even aware that he applied for the position.
7 Finally, DHCR explained that, unlike Syken, the candidate who was chosen for the position
8 with the Office of Housing Management (No. 12-2016) demonstrated interest in field work and
9 generally left a favorable impression on the interviewers. At the interview, Syken emphasized his
10 preference for a compressed schedule, which made him a poor fit for the position. Again, McCray
11 was not the decisionmaker. The fact that McCray was called as a reference and reported Syken’s
12 poor job performance to the decisionmakers does not support the conclusion that “the employer’s
13 employment decision was more likely than not based in whole or in part on discrimination.”
14 Kirkland, 760 F.3d at 225 (citation and alterations omitted).
15 We have considered the remainder of Syken’s arguments and find them to be without merit.
16 For the foregoing reasons, we AFFIRM the judgment of the district court.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk of Court
4