Jones v. Rochester City Sch. Dist. , 676 F. App'x 95 ( 2017 )

15-3422
Jones v. Rochester City Sch. Dist.
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.
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 25th day of January, two thousand seventeen.
PRESENT:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_______________________________________
HOWARD JONES,
Plaintiff-Appellant,
v. No. 15-3422
ROCHESTER CITY SCHOOL DISTRICT,
Defendant-Appellee.
_______________________________________
For Plaintiff-Appellant: MELVIN BRESSLER, Pittsford, NY.
For Defendant-Appellee: CARA BRIGGS, Associate General Counsel,
Rochester City School District, Rochester
NY.
Appeal from a judgment of the United States District Court for the Western District of
New York (Geraci, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Howard Jones appeals from a final judgment granting summary judgment in
favor of the defendant and dismissing his claims for retaliation, pleaded as violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law
(“NYSRHL”). We assume the parties’ familiarity with the underlying facts and the procedural
history of this case.
We review de novo an award of summary judgment for claims under Title VII, § 1981, and
the NYSHRL. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010); see
Garcia v. Hartford Police Dept., 706 F.3d 120, 126-27 (2d Cir. 2013) (§ 1981). “Summary
judgment is appropriate where ‘there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843
(2d Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).
We analyze Appellant’s retaliation claims according to standards applicable to Title VII.
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010); see Patterson v. County of Oneida, N.Y., 375
F.3d 206, 225 (2d Cir. 2004) (“Most of the core substantive standards that apply to claims of
discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in
employment in violation of § 1981.”); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d
Cir. 1996) (“We consider [plaintiff’s] state law claims in tandem with her Title VII claims because
New York courts rely on federal law when determining claims under the New York [State] Human
Rights Law.”). “Federal and state law retaliation claims are reviewed under the burden-shifting
approach of McDonnell Douglas.” Zann Kwan, 737 F.3d at 843. “Under the first step of the
McDonnell Douglas framework, the plaintiff must establish a prima facie case of retaliation by
showing 1) ‘participation in a protected activity’; 2) the defendant’s knowledge of the protected
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activity; 3) ‘an adverse employment action’; and 4) ‘a causal connection between the protected
activity and the adverse employment action.’” Id. at 844 (quoting Jute v. Hamilton Sundstrand
Corp., 420 F.3d 166, 173 (2d Cir. 2005) (citation and internal quotation marks omitted)). The
plaintiff’s burden of proof at this first step is “minimal.” Id. (internal quotation marks omitted).
Appellant does not dispute that, if he received his right-to-sue letter from the Equal
Employment Opportunity Commission (“EEOC”) on June 29, 2011, his Title VII claim was
untimely. Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) (“In order to be
timely, a claim under Title VII . . . must be filed within 90 days of the claimant’s receipt of a right-
to-sue letter.”); 42 U.S.C. § 2000e-5(f)(1). He asserted in his complaint, and confirmed during
summary judgment, that he did in fact receive the right-to-sue letter on June 29, 2011. On appeal,
he attaches a letter from the Director of the Buffalo office of the EEOC stating that the EEOC’s
computer log reflects that the right-to-sue letter was mailed to Appellant’s attorney on June 29,
2011. According to Appellant, we should assume that he did not receive the letter for at least three
days, rendering his Title VII claim timely. See, e.g., Sherlock, 84 F.3d at 525 (“Normally it is
assumed that a mailed document is received three days after its mailing.”). We decline to apply
this assumption because Appellant made clear in his complaint and summary judgment papers that
he received the letter on June 29, 2011.
The district court, moreover, correctly ruled that all of Appellant’s retaliation claims—
including the claim brought under Title VII—failed on the merits. The district court concluded
that the gravamen of the complaint, that the defendant punished Jones for filing an EEOC
complaint, failed because the defendant disciplined him before it was aware that he had filed a
complaint with the EEOC. Appellant does not challenge this ruling on appeal. Instead, he points
to other evidence of retaliation, i.e., that his job evaluation scores were changed, he was prevented
from working overtime, and he was disciplined for being late to work during a blizzard. The
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district court correctly concluded, however, that his vague statements concerning the denial of
overtime were insufficient to survive summary judgment.
Although the district court did not address Appellant’s testimony regarding the changed
evaluation scores and the blizzard incident, “[w]e may, of course, affirm on any ground that finds
supports in the record.” In re Adderall XR Antitrust Lit., 754 F.3d 128, 134 n.4 (2d Cir. 2014).
We easily conclude that neither Appellant’s testimony nor his conclusory contentions on appeal
draw a sufficient connection between these incidents and any protected activity. See Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (observing that the temporal proximity between
an employer’s knowledge of a protected activity and an adverse employment action “must be very
close” (internal quotation marks omitted)); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d
Cir. 2010 (observing that the non-moving party “may not rely on conclusory allegations or
unsubstantiated speculation”); Hayut v. State Univ. of New York, 352 F.3d 733, 743 (2d Cir. 2003)
(“The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for the [non-
movant].”).
We have considered all of Appellant’s arguments and conclude that they are without merit.
We therefore AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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