Sce v. City of New York ( 2022 )

20-3954-cv
Sce v. City 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
“SUMMARY ORDER”). A PARTY CITING 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
1st day of March, two thousand twenty-two.
Present: DENNIS JACOBS,
REENA RAGGI,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
ANDRE SCÉ,
Plaintiff-Appellant,
v. 20-3954-cv
CITY OF NEW YORK, DEPUTY CHIEF PAUL
CIORRA, CAPTAIN TIMOTHY MORGAN,
LIEUTENANT PETER A. SALLIE, INSPECTOR
STEVEN D’ULISSE, DEPUTY INSPECTOR
SYLVESTOR GE, all individually as well as in
their official capacity as employees of the New
York City Police Department,
Defendants-Appellees.
_____________________________________
For Plaintiff-Appellant: DEBORAH I. FRANCOIS (David B. Shanies, on the
brief), David B. Shanies Law Office, New York, NY
For Defendants-Appellees: JULIE STEINER (Richard P. Dearing, Claude S.
Platton, on the brief), for Georgia M. Pestana, Acting
Corporation Counsel of the City of New York, New
York, NY
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Appeal from a judgment of the United States District Court for the Southern District of
New York (William H. Pauley, III, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on November 2, 2020, is AFFIRMED
IN PART and VACATED IN PART and that the case is REMANDED for further proceedings.
Plaintiff-Appellant Andre Scé appeals from the district court’s judgment (1) granting
Defendants-Appellees’ motion for summary judgment on the claims advanced in the Second
Amended Complaint (“SAC”), (2) granting Defendants-Appellees’ motion to dismiss the
additional retaliation claims advanced in the Third Amended Complaint (“TAC”), and (3) denying
Scé the opportunity to move to amend the complaint a fourth time. 1 We assume the reader’s
familiarity with the record.
I. The District Court Correctly Granted Summary Judgment on Scé’s Discrimination
Claims
We review a district court’s grant of summary judgment de novo, construing the evidence
in the light most favorable to the party against which summary judgment was granted and drawing
all reasonable inferences in its favor. Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016). Affirmance
is warranted “only if there is no genuine issue of material fact and the prevailing party was entitled
to judgment as a matter of law,” and summary judgment “must be rejected if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id. (internal quotation
marks omitted). Scé’s Title VII discrimination claims are subject to the McDonnell Douglas
burden-shifting framework. 2 Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014).
These claims are based on Defendants-Appellees’ alleged failures to promote him and their alleged
denial of overtime opportunities.
a. Scé’s Title VII Failure-to-Promote Claim
To establish a prima facie case of discriminatory failure to promote, a plaintiff must
ordinarily demonstrate that “he or she: (1) is a member of a protected class; (2) was qualified for
the position at issue; (3) was denied the position; and (4) that the circumstances of the adverse
employment decision give rise to an inference of discrimination.” Mandell v. Cnty. of Suffolk, 316
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The district court also granted summary judgment in favor of Defendants-Appellees on Scé’s claims under 42
U.S.C. § 1983. Scé abandoned these claims by failing to address them in his opening brief on appeal.
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Under this framework, Scé must state a prima facie case of race discrimination by proffering evidence that (1) he
belongs to a protected group; (2) he was qualified for his position; (3) his employer took an adverse action against
him; and (4) the adverse action occurred in circumstances giving rise to an inference of race discrimination. Kirkland
v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014). Once an employee makes a prima facie case, the burden shifts
to the employer to give a legitimate, non-discriminatory reason for its actions. Id. If the employer does so, the burden
then shifts back to the plaintiff to show “circumstances that would be sufficient to permit a rational finder of fact to
infer that the [employer’s] employment decision was more likely than not based in whole or in part on discrimination.”
Id. (internal quotation marks omitted).
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F.3d 368, 377 (2d Cir. 2003). Like the district court, we conclude that Scé failed to establish a
prima facie case of discrimination with respect to his failure-to-promote claim under Title VII
because he failed to demonstrate a genuine dispute of material fact as to whether he was qualified
for the positions in question. Scé’s failure-to-promote claim is based on the allegedly
discriminatory denial of the opportunity to apply for a position in the Collision Investigation Squad
(“CIS”) or Collision Technician Group (“CTG”). These groups investigate car accidents, and
Defendants-Appellees introduced evidence that Scé was not qualified to join either group because
he “did not have any background in investigations or Detective work.” App’x 1436 ¶ 17. Scé
counters that he was qualified for these positions because he served as a training sergeant, in which
capacity he facilitated trainings for various units within the New York Police Department Highway
Division (including CIS and CTG) but did not himself provide instruction. 3 But we have held that
“being qualified refers to the criteria the employer has specified for the position,” Williams v. R.H.
Donnelley, Corp., 368 F.3d 123, 127 (2d Cir. 2004) (internal quotation marks omitted), and so
Scé’s assertion that he has relevant training experience does not establish that he has the
qualification Defendants-Appellees set for membership in CIS or CTG—actual investigative
experience. 4 Accordingly, Scé has failed to establish a prima facie case of discrimination, and we
affirm the district court’s grant of summary judgment for Defendants-Appellees on his Title VII
failure-to-promote claim.
b. Scé’s Title VII Denial-of-Overtime Claim
The district court also correctly determined that Scé failed to establish a genuine dispute of
fact as to whether he was denied opportunities to earn overtime under circumstances giving rise to
an inference of discrimination. Scé submitted a statistical analysis of his and other sergeants’
overtime pay and argued that the data reflected that Scé earned fewer hours of overtime pay when
Defendant-Appellee Morgan was his supervisor than he did in the periods during which he had
another supervisor. 5 On appeal, Scé argues that the district court “ignored the clear correlation
between Plaintiff’s overtime and Morgan’s influence” and “did not address Plaintiff’s declaration
that in February 2015, Defendant Sallie told Plaintiff that Morgan had placed strict limits on
3
In his Local Rule 56.1 Statement of Undisputed Facts, Scé purported to deny Defendants-Appellees’ assertions that
Scé’s responsibilities included tracking and scheduling training for members of CIS and that he did not provide
instruction to members of CIS or CTG. We agree with the district court that Scé’s denials do not create a genuine
dispute of fact because the record evidence he cites does not support his denials. See S.D.N.Y. Loc. Civ. R. 56.1(b)–
(d).
4
Scé’s conclusory assertion that five white sergeants who lacked investigatory backgrounds received positions in CIS
or CTG does not create a genuine dispute of fact. Scé merely provides the last names of these sergeants and asserts
that they did not have investigatory backgrounds but provides no other information. See Patterson v. Cnty. of Oneida,
N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (“Nor is a genuine issue created merely by the presentation of assertions that
are conclusory.”).
5
Scé also attempted to use data analysis to show (1) that he received fewer overtime hours on average when he served
under Morgan, and (2) that, in general, a disparity existed between the overtime pay of white and black sergeants, i.e.,
that he was denied overtime in circumstances permitting an inference of discrimination. Scé analyzed the overtime
pay of every sergeant who served in Highway at some point between 2011 and 2018 but, as Scé admitted and the
district court recognized, the data did not provide the dates during which each sergeant worked in Highway, and so
there was no way to determine whether a sergeant was serving in Highway or in a different department or precinct
when he or she incurred overtime. We agree with the district court that these limitations make it impossible to draw
an inference of discrimination from the data without further information regarding Scé’s comparators.
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Plaintiff’s overtime opportunities.” Scé Br. 21–22. Scé’s argument overstates the record—Scé
averred that “[i]n February 2015 Sallie told me that Morgan told [him] that I could not get overtime
unless it was instructor related.” App’x 1548 ¶ 31. At the time of Sallie’s statement, Scé was
working as an instructor, and he fails to explain why it was adverse for Morgan to limit his
overtime to work associated with his primary duties, or to adduce evidence showing that Morgan
did not so limit the overtime of white sergeants. We therefore conclude that Scé failed to
demonstrate a genuine dispute of material fact as to whether he was denied overtime (if at all) in
circumstances giving rise to an inference of discrimination. Scé points to two racist comments
allegedly made by Defendant-Appellee Morgan as circumstantial evidence of discrimination, but,
as the district court correctly observed, Scé produced no evidence as to when those comments were
made and therefore failed to establish any nexus between those comments and any denial of
overtime. We therefore affirm the district court’s decision to grant summary judgment for
Defendants-Appellants on Scé’s denial-of-overtime claim under Title VII.
c. Scé’s Discrimination Claims under the NYCHRL
The district court also granted summary judgment in favor of Defendants-Appellees with
respect to Scé’s discrimination claim under the New York City Human Rights Law (“NYCHRL”),
N.Y.C. Admin. Code § 8-101 et seq. With respect to his discrimination claims, Scé argues that
the district court failed to analyze his NYCHRL claims separately from his federal claims and
failed to consider the totality of the circumstances. See Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 113 (2d Cir. 2013) (noting that, in reviewing NYCHRL claims, federal
courts must analyze such claims separately and independently from any federal and state claims
and must consider the “totality of the circumstances”). Contrary to Scé’s assertion, the district
court did conduct a separate and independent analysis of each of Scé’s NYCHRL claims. Nor
does Scé explain how an assessment of the “totality of the circumstances” would have undermined
the district court’s conclusion that his Title VII discrimination claims fail. We therefore affirm the
district court’s decision to grant summary judgment for Defendants-Appellees on Scé’s NYCHRL
discrimination claims.
II. The District Court Erred by Granting Summary Judgment on Scé’s Retaliation
Claims Under the New York City Human Rights Law and Dismissing the Retaliation
Claims Advanced in the TAC
Although we find no error in the district court’s analysis of Scé’s discrimination claims,
we vacate the district court’s decision to grant summary judgment in favor of Defendants-
Appellees on the NYCHRL retaliation and aiding and abetting claims advanced in the SAC and to
dismiss the additional retaliation claims under Title VII, the New York State Human Rights Law,
N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the NYCHRL advanced in the TAC. We review
the district court’s grant of summary judgment on Scé’s NYCHRL retaliation claim under the
standard recited above and review the court’s decision to grant Defendants-Appellees’ motion to
dismiss the additional retaliation claims advanced in the TAC de novo, construing the complaint
liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor. Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017).
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a. Summary Judgment on the Retaliation and Aiding and Abetting Claims under
the NYCHRL Advanced in the SAC
“[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff must show that she
took an action opposing her employer’s discrimination, and that, as a result, the employer engaged
in conduct that was reasonably likely to deter a person from engaging in such action.” Mihalik,
715 F.3d at 112 (internal citations omitted). The district court granted summary judgment in favor
of Defendants-Appellees on the NYCHRL retaliation claim advanced in the SAC for failure to
establish a genuine dispute of material fact as to causation.
As an initial matter, it appears that the district court may have applied the incorrect
causation standard. In explaining the principles applicable to retaliation claims under the
NYCHRL, the district court recited the “but-for” causation standard applicable to Title VII
retaliation claims. To grant summary judgment in favor of a defendant in an NYCHRL retaliation
claim, however, a court must conclude as a matter of law that “retaliation played no role in the
defendant’s actions.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 76 (2d Cir. 2015) (internal
quotation marks omitted). The possibility that the district court applied the more demanding
causation standard applicable to federal retaliation claims to Scé’s NYCHRL claims may alone
warrant vacatur as to the latter. See Velazco v. Columbus Citizens Found., 778 F.3d 409, 411 (2d
Cir. 2015) (vacating grant of summary judgment and remanding on NYCHRL claims where the
district court did not “sp[eak] with sufficient clarity . . . as to whether the evidence was insufficient
to support any causal link between age bias and plaintiff’s firing, as required by the NYCHRL, or
whether the evidence was simply insufficient to support the but-for causation required by the
ADEA” (internal citations omitted)). We also vacate the district court’s decision to grant summary
judgment on Scé’s NYCHRL aiding and abetting claim because the district court ruled on the
ground that “no liability can attach in the absence of underlying discriminatory or retaliatory
conduct,” SPA 33 n.10, and we reinstate such underlying claims.
We also agree with Scé that the district court erred on the merits. The district court
concluded that the allegedly baseless disciplinary investigations Scé complained of were too
remote in time from any protected action to raise an inference of retaliatory motive. In considering
which events in the litigation might have reset the clock, the district court limited itself to the
temporal proximity of retaliatory actions to (i) Scé’s filing of the EEOC charge in September 2015
and (ii) his initial complaint in September 2016. However, the initiation of an EEOC investigation
or lawsuit is not the only type of event that might prompt actionable retaliation. See Richardson
v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 447 (2d Cir. 1999) (holding that plaintiff
established prima facie case of retaliation where incidents of harassment “occurred shortly after
deposition notices were served” in her lawsuit), abrogated on other grounds, Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Here, Scé offered evidence that an allegedly
baseless sexual harassment investigation was instituted against him less than a week after he served
deposition notices on several of the individual Defendants-Appellees. Moreover, Scé submitted a
declaration from a former NYPD officer, Edward Rosovich, who averred that, “[o]n many
occasions between 2014 and 2018,” he personally observed Defendants-Appellees Ge and Morgan
speak with another officer, Sergeant Schneider, “about their plans to harm Sergeant Sc[é]’s career”
by planning to “use fabricated disciplinary charges to harm Sergeant Sc[é].” App’x 1542–42. The
district court erred in dismissing these allegations of direct observations as “conclusory,” SPA 31,
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and in concluding therefore that Scé failed to establish a genuine dispute of material fact as to
causation. We therefore vacate the district court’s grant of summary judgment in favor of
Defendants-Appellees on Scé’s NYCHRL retaliation claim to the extent that is based on an
allegedly baseless disciplinary proceeding.
b. Dismissal of the Retaliation Claims Under Title VII, the NYSHRL, and the
NYCHRL advanced in the TAC
In the TAC, Scé brought additional retaliation claims under Title VII and the New York
State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the NYCHRL. “[F]or
a retaliation claim [under Title VII] to survive a . . . motion to dismiss, the plaintiff must plausibly
allege that: (1) defendants discriminated—or took an adverse employment action—against him,
(2) ‘because’ he has opposed any unlawful employment practice.” Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (quoting 41 U.S.C. § 2000e-3(a)). Title VII and
NYSHRL claims are typically treated as “analytically identical.” Lenzi v. Systemax, Inc., 944 F.3d
97, 107 n.7 (2d Cir. 2019).
The district court dismissed the retaliation claims advanced in the TAC for failure to plead
causation. Specifically, the district court construed these claims as relating only to retaliation in
response to the filing of the SAC in June of 2018 and concluded, based on temporal proximity
alone, that two disciplinary proceedings brought against Scé in February and May of 2019 were
too far removed from the filing of the SAC to establish causation. We do not read the TAC and
its new retaliation claims so narrowly. Although Scé added factual allegations relating to
retaliation occurring after he filed his SAC, he explicitly styled his Title VII claim as being based
on protected activities including “filing complaints of racial discrimination, filing an EEOC
charge, and pursuing this lawsuit.” App’x 1424 (TAC ¶ 401). We therefore hold that it was error
for the district court to dismiss the new retaliation claims based only on an analysis of alleged
retaliation occurring after the filing of the SAC. Accordingly, we vacate the district court’s
decision to grant the Defendants-Appellees’ motion to dismiss the TAC with respect to Scé’s Title
VII, NYSHRL, and NYCHRL retaliation claims.
III. The District Court Erred by Refusing to Allow Scé to File a Motion to Amend
“Absent extraordinary circumstances, such as a demonstrated history of frivolous and
vexatious litigation, or a failure to comply with sanctions imposed for such conduct, a court has
no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal
Rules of Civil Procedure.” Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir.
1987) (citations omitted). Requiring that the district courts allow filing of even those motions that,
on their face, may appear to lack merit is necessary to enable appellate review. See IBM v.
Edelstein, 526 F.2d 37, 45 (2d Cir. 1975). However, we have, in unpublished summary orders,
occasionally affirmed where a district court deemed a letter requesting a pre-motion conference to
be the motion itself and denied it. See, e.g., StreetEasy, Inc. v. Chertok, 730 F. App’x 4, 6 (2d
Cir. 2018). In these situations, we emphasized the length and detail of the pre-motion letters and
responses and the clear lack of merit of the motion. See id. at 6 (“[T]he parties offered detailed
arguments in pre-motion letters that evidenced the clear lack of merit in [the] contemplated motion
. . . .”). Here, Scé’s letter requesting a pre-motion conference related to a forthcoming motion to
amend was only two single-spaced pages and covered two other requests in addition to his
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contemplated motion to amend. He submitted three exhibits but appears not to have been able to
file a reply. Defendants-Appellees submitted a three-page letter in opposition to Scé’s requests,
but their argument on the request for leave to amend is confined to two paragraphs. Accordingly,
it was not appropriate for the district court to deem the motion to amend made and to rule on it.
We therefore vacate the district court’s denial of Scé’s motion to amend.
* * *
For the foregoing reasons, we AFFIRM IN PART and VACATE IN PART the judgment
of the district court and REMAND for further proceedings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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