Providence Aiossa v. Bank of America, N.A., AKA Bank of America & Co. ( 2013 )

12-4162-cv
Providence Aiossa v. Bank of America, N.A., AKA Bank of America & Co., John Frazza and Sue Cole
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 4th day of September, two thousand thirteen.
5
6 PRESENT: RALPH K. WINTER,
7 RICHARD C. WESLEY,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10
11
12
13 PROVIDENCE AIOSSA,
14
15 Plaintiff-Appellant,
16
17 -v.- 12-4162-cv
18
19 BANK OF AMERICA, N.A., AKA BANK OF AMERICA & CO., JOHN
20 FRAZZA AND SUE COLE,
21
22 Defendants-Appellees.
23
24
25 FOR APPELLANT: NORMAN A. OLCH, Law Office of Norman A.
26 Olch, New York, NY.
27
28 FOR APPELLEES: Deborah Zawadzki, Kaufman Borgeest & Ryan
29 LLP, New York, NY (Jonathan B. Bruno,
30 Kaufman Borgeest & Ryan LLP; Siobhan M.
31 Sweeney, Edwards Wildman Palmer LLP, on
32 the brief).
33
34
1 Appeal from the United States District Court for the
2 Eastern District of New York (Seybert, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the United States District
6 Court for the Eastern District of New York is AFFIRMED.
7 Appellant Providence Aiossa appeals from a September
8 21, 2012 judgment of the United States District Court for
9 the Eastern District of New York (Seybert, J.) granting
10 summary judgment for Defendants on Aiossa’s claims of
11 retaliation, age discrimination, and aiding and abetting in
12 violation of the New York State Human Rights Law, N.Y. Exec.
13 Law § 296 (“NYSHRL”), and the New York City Human Rights
14 Law, N.Y.C. Admin. Code § 8-107 (“NYCHRL”). We assume the
15 parties’ familiarity with the underlying facts, the
16 procedural history, and the issues presented for review.
17 We review an order granting summary judgment de novo,
18 resolving all ambiguities and drawing all permissible
19 factual inferences in favor of the non-moving party. See
20 Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d
21 102, 108 (2d Cir. 2013). Summary judgment is appropriate
22 only when “the movant shows that there is no genuine dispute
23 as to any material fact and the movant is entitled to
24 judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
25 genuine issue of fact exists for summary judgment purposes
2
1 “where the evidence is such that a reasonable jury could
2 decide in the non-movant’s favor.” Beyer v. Cnty of Nassau,
3 524 F.3d 160, 163 (2d Cir. 2008) (citing Guilbert v.
4 Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). To resist a
5 motion for summary judgment, a party must provide more than
6 conclusory allegations and must “show more than ‘some
7 metaphysical doubt as to the material facts.’” Gorzynski v.
8 JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010)
9 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
10 475 U.S. 574, 586 (1986)).
11 The NYSHRL and NYCHRL make it unlawful for an employer
12 to, among other things, discriminate on the basis of age,
13 N.Y. Exec. Law § 296(1); N.Y.C. Admin. Code § 8-107, and to
14 retaliate against an employee for engaging in protected
15 conduct, N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-
16 107, the latter of which we assume for purposes of this
17 appeal to include complaining about racial discrimination
18 against a fellow employee.
19 We analyze discrimination and retaliation claims under
20 § 296 of the NYSHRL under the burden-shifting framework of
21 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
22 Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010). Under
23 that framework, if a plaintiff puts forth a prima facie case
3
1 of discrimination and the defendant then provides a
2 nondiscriminatory reason for its actions, the burden shifts
3 back to the plaintiff to prove that the defendant's
4 proffered reason is pretextual. Id.5 We analyze discrimination and retaliation claims under
6 the NYCHRL “separately and independently from any federal
7 and state law claims,” and construe the NYCHRL “broadly in
8 favor of discrimination plaintiffs, to the extent that such
9 a construction is reasonably possible.” Mihalik, 715 F.3d
10 at 109 (internal quotations omitted). An employer “is
11 entitled to summary judgment [under the NYCHRL] only if the
12 record establishes as a matter of law that ‘discrimination
13 play[ed] no role.’” Id. at 110 n.8 (citing Williams v.
14 N.Y.C. Hous. Auth., 61 A.D.3d 62 (1st Dep’t 2009)).
15 Appellant argues that the district court erred in
16 failing to separately analyze her NYCHRL and NYSHRL claims.
17 To the extent the district court erred, the error was
18 harmless; even where Appellant may be entitled to the
19 NYCHRL’s broader protections, there is no genuine issue as
20 to whether discriminatory or retaliatory intent motivated
21 Defendants’ actions.
22 Appellant, who was a Bank of America mortgage loan
23 officer when the alleged retaliation and discrimination
4
1 occurred, identifies two instances of protected conduct: In
2 January 2007, Appellant complained that a fellow employee
3 was the target of racial discrimination, and around April
4 2008, Appellant complained that a fellow employee and
5 herself were the victim of discrimination. She argues that
6 following these complaints, Appellees retaliated against her
7 by, among other things, stripping her of her Long Island
8 banking centers, initiating a series of baseless
9 investigations, and ultimately terminating her.
10 To support her claims, Appellant fails to present
11 probative facts beyond some measure of temporal proximity.
12 Yet even where temporal proximity might otherwise have been
13 probative, Appellees rebutted Appellant’s claims: (1)
14 similarly situated employees who did not complain about
15 discrimination were presented with the same options, i.e. to
16 transfer or to join the Long Island sales team under a new
17 manager; and (2) substantial evidence supported Appellees’
18 contention that legitimate, non-retaliatory reasons
19 motivated their decision to investigate Aiossa for fraud.
20 Short of speculation, therefore, there is no evidence that
21 retaliation or Aiossa’s age played even a partial motivating
22 role in any of the allegedly adverse actions.
23
5
1 We have reviewed Appellant’s remaining arguments
2 and find them to be without merit. For the foregoing
3 reasons, the judgment of the district court is hereby
4 AFFIRMED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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