Bright-Asante v. Saks & Co.

20-1280
Bright-Asante v. Saks & Co.
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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 14th day of May, two thousand twenty-one.
PRESENT:
BARRINGTON D. PARKER,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_________________________________________
MICHAEL BRIGHT-ASANTE,
Plaintiff-Appellant,
v. No. 20-1280
SAKS & COMPANY, INC., AND THEO CHRIST,
Defendants-Appellees,
LOCAL 1102 RWDSU UFCW,
Defendant.
_________________________________________
FOR APPELLANT: K.C. OKOLI, Law Offices of K.C. Okoli,
P.C., New York, NY.
FOR APPELLEES: WENDY JOHNSON LARIO, Greenberg
Traurig, LLP, Florham Park, NJ.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Edgardo Ramos, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on March 19, 2020, is
AFFIRMED.
Plaintiff-Appellant Michael Bright-Asante sued his former employer, the department
store Saks & Company, Inc. (“Saks” or “the Store”), and Saks’s Vice President of Human
Resources, Theo Christ (together, “Defendants”), alleging discrimination in violation of
42 U.S.C. § 1981, employment discrimination in violation of the New York City Human
Rights Law (“NYCHRL”), and “constructive discharge.” Joint App’x 64-65 (Second Am.
Compl. ¶¶ 79-83). The district court granted summary judgment to Defendants on all claims.
Bright-Asante now appeals. We assume the parties’ familiarity with the underlying facts,
procedural history, and arguments on appeal, to which we refer only as necessary to explain
our decision to affirm.
Bright-Asante’s claims arise from his 2014 suspension without pay from his job at a
Saks store in New York City following an internal investigation. The investigation focused
on a group of sales associates suspected of facilitating fraudulent purchases with stolen credit
card information, working with non-employee conspirators. In 2014, Bright-Asante
facilitated two transactions that Saks flagged as suspicious because of the zip code associated
with the credit card used. Upon review of relevant CCTV footage, the Store’s investigators
concluded that the transactions were fraudulent. The Store then forwarded the footage to
law enforcement authorities for further investigation. This referral resulted in Bright-
Asante’s arrest and suspension without pay.
The criminal charges against Bright-Asante were subsequently dropped on speedy
trial grounds. Bright-Asante alleges that his suspension and Saks’s failure to reinstate him
after the charges were dropped were unlawfully motivated by race.
2
On de novo review and viewing the record in the light most favorable to
Bright-Asante, as we must, we conclude that the district court did not err when it entered
summary judgment for Defendants. The record reveals no genuine issue of material fact
related to Bright-Asante’s claim that Saks acted with a discriminatory motive. See Robinson v.
Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015). 1
Challenging the district court’s determination, Bright-Asante, who is
African-American, points to his allegation regarding Saks’s treatment of employee Susan
David, who is white. David processed transactions for the same impostor customer after
impostor’s transaction with Bright-Asante aroused the suspicions leading to the charges
against him. Presenting David as a comparator, Bright-Asante argues that Saks’s failure to
forward the security footage of David’s sales transactions with the impostor to law
enforcement and to take any adverse employment actions against David constitutes unlawful
discrimination.
Bright-Asante’s arguments fall short. Even if David’s transaction with the imposter
raised suspicion of a further fraudulent transaction, the evidence did not implicate David in
the fraud so as to admit an inference of race discrimination in Saks’s treatment of its
employees. The transactions conducted by Bright-Asante and David were different in
material respects. David did not take the customer into the private, closed-off area where
Bright-Asante had gone. Further, David, unlike Bright-Asante, did not allow the customer to
access the Saks register to input her Social Security number and email address; did not use
her cell phone during the transactions; and did not take an unusually long time to process
her transactions. Lisa Benson, a Saks executive who reviewed the CCTV footage at the time,
explained persuasively that because of these differences in the transactions she did not find
David’s actions in dealing with the impostor customer suspicious and therefore did not
forward David’s footage to law enforcement. Bright-Asante does not dispute these critical
differences between his and David’s transactions. Nor does he point to any other aspects of
1Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and internal
quotation marks.
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the two sets of transactions that could give rise to an inference of discriminatory motive by
Saks in dealing with its employees.
Bright-Asante further alleges that Saks’s failure to reinstate him in March 2015, after
the charges against him were dropped, was a result of discriminatory intent. He fails,
however, to adduce evidence supporting this conclusory allegation. Even under the
NYCHRL, which courts interpret “broadly in favor of discrimination plaintiffs,” Albunio v.
City of New York, 16 N.Y.3d 472, 477 (2011), to survive a motion for summary judgment
Bright-Asante must adduce evidence admitting a finding that Saks’s conduct stemmed at
least in part from a discriminatory motive, Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
715 F.3d 102, 110 n.8 (2d Cir. 2013). But Bright-Asante has not pointed to any evidence of
discriminatory intent fueling the decision not to reinstate him. Bright-Asante has therefore
not made the showing necessary to preclude summary judgment for Defendants with regard
to his failure-to-reinstate claim.
Bright-Asante’s two other claims, for unlawful discrimination under 42 U.S.C. § 1981and for unlawful constructive discharge, also require him to show circumstances giving rise
to an inference of racial discrimination. See Domino’s Pizza, Inc. v McDonald, 546 U.S. 470, 476
(2006) (“Section 1981 offers relief when racial discrimination blocks the creation of a
contractual relationship, [or] . . . impairs an existing contractual relationship . . . .”).
Although Bright-Asante does not identify a statutory basis for his claim for wrongful
constructive discharge, this claim would fail under any relevant statutory scheme—Section
1981, Title VII, or the NYCHRL—because Bright-Asante has not presented evidence that
would support an inference of discriminatory intent. See Chertkova v. Conn. Gen. Life Ins. Co.,
92 F.3d 81, 91-92 (2d Cir. 1996) (prima facie case for wrongful constructive discharge under
Title VII requires showing that the conduct occurred “under circumstances that give rise to
an inference of discrimination”); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.
1987) (prima facie case of wrongful discharge under Section 1981 requires showing “the
discharge occurred in circumstances giving rise to inference of racial discrimination”).
Therefore, the district court properly entered summary judgment for Defendants on these
claims as well.
4
Finally, in March 2017, in these same proceedings, the district court denied a motion
filed by Bright-Asante for vacatur of an arbitration award, rejecting a grievance pursued by
Bright-Asante’s union against Saks. See Bright-Asante v. Saks & Co., 242 F. Supp. 3d 229, 236,
238-39 (S.D.N.Y. 2017). 2 On appeal, Bright-Asante maintains that the district court erred
when it denied vacatur because (Bright-Asante asserts) the award was obtained by fraud—
specifically, based on the allegedly perjurious testimony of a Saks employee. On review, we
identify no error in the district court’s denial of the motion. To establish fraud sufficient to
vacate an arbitral award, Bright-Asante had to show (1) the existence of “fraudulent activity”;
(2) that, “even with the exercise of due diligence,” he “could not have discovered the fraud
prior to the award issuing”; and (3) that “the fraud materially related to an issue in the
arbitration.” Odeon Cap. Grp. LLC v. Ackerman, 864 F.3d 191, 196 (2d Cir. 2017). Bright-
Asante provided no evidence of the testimony taken during the arbitration (which he did not
attend) in his moving papers before the district court and does no more than repeat these
unsupported allegations in his briefing before this Court. Without providing at least the
challenged testimony, he has failed to show that any perjury occurred or even that the
testimony he wishes to challenge was materially related to the arbitrator’s decision. See Duferco
Int'l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003) (“A party
petitioning a federal court to vacate an arbitral award bears the heavy burden of showing that
the award falls within a very narrow set of circumstances delineated by statute and case
law.”). Bright-Asante has therefore failed to demonstrate any error.
* * *
2 Defendants maintain we lack jurisdiction to entertain this challenge because Bright-Asante did not identify
any judgment other than the district court’s March 2020 order awarding summary judgment to Saks in his
Notice of Appeal. While Federal Rule of Appellate Procedure 3(c) requires the notice of appeal to “designate
the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B), “a notice of appeal that
names the final judgment” will typically “support review of all earlier orders that merge in the final
judgment,” City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 453 (2d Cir. 2008). We need not
conclusively decide the jurisdictional question, however, because Bright-Asante’s challenge is without merit in
any event, for the reasons discussed above.
5
We have considered Bright-Asante’s remaining arguments and find in them no basis
for reversal. For the foregoing reasons, the district court’s judgment is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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