Talwar v. Staten Island University Hospital , 610 F. App'x 28 ( 2015 )

14-1520-cv
Talwar v. Staten Island University Hospital
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 for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 6th day of May, two thousand fifteen.
4
5 PRESENT: RALPH K. WINTER,
6 DEBRA ANN LIVINGSTON,
7 DENNY CHIN,
8
9 Circuit Judges.
10 ____________________________________________________
11
12 JOTICA TALWAR,
13
14 Plaintiff-Appellant,
15
16 v. No. 14-1520-cv
17
18 STATEN ISLAND UNIVERSITY HOSPITAL,
19 ANTHONY C. FERRERI, HENRY SIMPKINS,
20
21 Defendants-Appellees.
22 ____________________________________________________
23
24 FOR APPELLANT: ANN B. MACADANGDANG, Alan G. Serrins, Serrins Fisher
25 LLP, New York, NY.
26
27 FOR APPELLEES: JOHN F. FULLERTON III, Steven M. Swirsky, Epstein,
28 Becker & Green, P.C., New York, NY.
29 _____________________________________________________
30
31 Appeal from the United States District Court for the Eastern District of New York
32 (Amon, C.J.).
1
1 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
2 ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED IN
3 PART, VACATED IN PART, and REMANDED for consideration of Plaintiff-Appellant’s city
4 law claims and for entry of summary judgment in favor of Appellees as to Plaintiff-Appellant’s
5 New York State Human Rights Law claims.
6 Plaintiff-Appellant Dr. Jotica Talwar (“Talwar”) appeals from a judgment of the district
7 court granting her former employer, Staten Island University Hospital (the “Hospital”), and two
8 Hospital officials, Anthony C. Ferreri and Henry Simpkins (collectively, “Appellees”) summary
9 judgment in their favor on Talwar’s federal discrimination and retaliation claims, brought
10 pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 2000e-2 et seq. (“Title VII”), 29 U.S.C. § 206(d)(1)
11 (the “Equal Pay Act”), and 42 U.S.C. § 2000e-5(e)(3) (“the Lilly Ledbetter Fair Pay Act”), and
12 Talwar’s equal pay claim brought pursuant to New York Labor Law § 194, and declining to
13 exercise supplemental jurisdiction over Talwar’s remaining state and city claims, brought
14 pursuant to the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.
15 (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(1)(a),
16 (7) (“NYCHRL”). We review orders granting summary judgment de novo, resolving all factual
17 ambiguities and drawing all reasonable factual inferences in favor of the non-moving party.
18 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is
19 appropriate only if the moving party can show that there are no genuine issues of material fact
20 and that the moving party is entitled to judgment as a matter of law. Id. We assume the parties’
21 familiarity with the underlying facts, the procedural history, and the issues presented for review.
22 * * *
23 Talwar challenges the dismissal of her Title VII national-origin discrimination and
24 gender discrimination claims, as well as her 42 U.S.C. § 1981 alienage discrimination claim, all
2
1 of which are analyzed under the same standards. See Ruiz v. Cnty. of Rockland, 609 F.3d 486,
2 491 (2d Cir. 2010). To establish a prima facie case of Title VII employment discrimination, a
3 plaintiff must show that (1) she is a member of a protected class (2) who was qualified for the
4 position she held, and (3) suffered an adverse employment action (4) under circumstances
5 creating an inference of discrimination. Id. at 491-92. If the plaintiff succeeds in stating a prima
6 facie case, the burden shifts to the defendant to offer a “legitimate nondiscriminatory reason” for
7 its actions. Id. at 492. In this case, however, Talwar’s efforts to establish a prima facie case were
8 unsuccessful. Although we will assume that Talwar had produced sufficient evidence to go to a
9 trier of fact as to whether she was a member of a protected class as to all three claims, was
10 qualified for her position, and suffered an adverse employment action,1 she failed to introduce
11 facts that would give rise to an inference of discrimination. Summary judgment was thus
12 appropriately granted on these claims.
13 Talwar also brought a retaliation claim under Title VII, alleging that the termination
14 clause was inserted into her contract only after she complained that female attending pathologists
15 were being paid less than male attending pathologists. Talwar is correct to the extent that she
16 suffered adverse employment action only after she complained about being paid less than
17 another attending pathologist. To establish a prima facie case of retaliation, however, Talwar
18 must allege that Appellees were on notice that Talwar’s complaints were about gender
19 discrimination, not just general unsatisfactory or unfair conduct. See Kelly v. Howard I. Shapiro
20 & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 15, 17 (2d Cir. 2013) (per curiam) (holding that
1
Talwar knew that the Hospital wanted her to obtain an unlimited medical license long before
the Hospital amended her contract in September 2009, setting a three-month deadline. She
further admits that she had informed the Hospital more than a year earlier that she was working
on obtaining permanent resident status. However, we need not decide whether the letter setting
the deadline was sufficient to constitute an adverse employment decision.
3
1 complaint is not protected from retaliation under Title VII “if nothing in the substance of the
2 complaint suggests that the complained-of activity is, in fact, unlawfully discriminatory”). While
3 there are no “magic words” that a plaintiff must use to complain of discrimination under Title
4 VII, see Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 521 (S.D.N.Y. 2010), in this case,
5 we agree with the district court that Talwar’s proof was insufficient to meet Title VII’s standards.
6 Accordingly, we conclude that summary judgment was properly granted as to her Title VII
7 retaliation claims.
8 Talwar also asserted pay discrimination claims under Title VII, the Equal Pay Act, the
9 Lilly Ledbetter Fair Pay Act, and New York Labor Law § 194, alleging that she was paid less
10 than one of her male coworkers because of her gender. Under the Equal Pay Act,2 a plaintiff
11 must show that (1) the employer pays different wages to employees of the opposite sex; (2) the
12 employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3)
13 the jobs are performed under similar working conditions. Lavin-McEleney v. Marist Coll., 239
14 F.3d 476, 480 (2d Cir. 2001). Talwar’s claim fails at the first step – male attending pathologists
15 were not, as a group, paid more than female attending pathologists. Two male attending
16 pathologists on staff in 2007 and 2008—Dr. Petrov and Dr. Xiao—earned substantially less than
17 Talwar, and even Dr. Kong, who was hired in 2008 and was paid more than Talwar, was paid
18 less than another female attending pathologist, Dr. Lazzaro. Talwar v. Staten Island Univ. Hosp.,
2
An equal pay claim under New York Labor Law § 194 “is analyzed under the same standards
applicable to the federal Equal Pay Act.” Pfeiffer v. Lewis Cnty., 308 F. Supp. 2d 88, 98 n.8
(N.D.N.Y. 2004). An equal pay claim under Title VII is analyzed under the same standards as an
Equal Pay Act claim, except that, in addition to establishing the elements of an Equal Pay Act
claim, a plaintiff must produce evidence of discriminatory animus. Belfi v. Prendergast, 191 F.3d
129, 139 (2d Cir. 1999). Talwar’s three equal pay claims will thus be analyzed under the same
approach. The Lilly Ledbetter Fair Pay Act does not provide a separate theory of recovery, but
instead establishes background rules for timing and damages in equal pay claims brought under
other statutes. See 42 U.S.C. § 2000e-5(e)(3).
4
1 2014 WL 5784626, at *11 (E.D.N.Y. Mar. 31, 2014). Summary judgment was thus appropriate
2 on Talwar’s Equal Pay Act claim, New York Labor Law § 194 claim, and Title VII pay
3 discrimination claim.
4 Having disposed of Talwar’s federal claims, the district court “decline[d] to exercise
5 supplemental jurisdiction over her remaining state law discrimination and retaliation claims,”
6 apparently in the belief that its jurisdiction over this case was based only on federal question
7 jurisdiction, not diversity jurisdiction. Id. at *12. This was incorrect. As the parties correctly
8 assert, Talwar’s complaint alleged and Appellees’ answer agreed that Talwar is a resident of
9 New Jersey, Appellees are residents of New York, and the amount in controversy exceeded
10 $75,000. With the diversity and amount-in-controversy requirements satisfied, the district court
11 had original jurisdiction over all of Talwar’s claims, state or federal. See 28 U.S.C. § 1332(a)(1).
12 Because the district court erred, we must now decide whether to remand Talwar’s state
13 and city claims for determination by the district court on the merits or—if the record presents no
14 genuine issue as to any material fact—to resolve them on appeal. See Chase Manhattan Bank,
15 N.A. v. Am. Nat’l Bank & Trust Co., 93 F.3d 1064, 1072 (2d Cir. 1996) (“An appellate court has
16 the power to decide cases on appeal if the facts in the record adequately support the proper
17 result.” (internal quotation marks omitted)). As to the New York State Human Rights Law
18 claims, this question is easily answered. “Employment discrimination claims brought under the
19 NYSHRL are analyzed identically to claims under . . . Title VII,” and thus the outcome of
20 Talwar’s NYSHRL discrimination claims must necessarily be the same as the outcome of her
21 Title VII claims. Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 316 n.2 (2d Cir. 1999).
22 Because we have affirmed the district court’s grant of summary judgment to Appellees on
23 Talwar’s Title VII claims, the same result is dictated as a matter of law for her state law claims.
24 Accordingly, we remand to the district court with instructions to enter summary judgment in
5
1 favor of Appellees as to Talwar’s state claims. See Chase Manhattan Bank, N.A., 93 F.3d at
2 1072.
3 Talwar’s New York City Human Rights Law (“NYCHRL”) claims cannot be resolved in
4 the same way, since “courts must analyze NYCHRL claims separately and independently from
5 any federal and state law claims,” and “even if the challenged conduct is not actionable under
6 federal and state law, federal courts must consider separately whether it is actionable under the
7 broader New York City standards.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d
8 102, 109 (2d Cir. 2013). Because the district court did not have the opportunity to conduct such a
9 “separate[] and independent[]” analysis of Talwar’s city law claims, and because we think it
10 appropriate that such an analysis be conducted in the first instance by the district court, we
11 remand Talwar’s NYCHRL claims to the district court for consideration under the proper
12 standard. See id.
13 We have considered all of the remaining arguments raised by Plaintiff-Appellant and find
14 them to be without merit. For the reasons stated above, we AFFIRM the District Court’s March
15 31, 2014 judgment as to Talwar’s federal and New York Labor Law § 194 claims, VACATE the
16 dismissal of Talwar’s state and city discrimination and retaliation claims for lack of original
17 subject matter jurisdiction, and REMAND to the district court for consideration of Talwar’s
18 NYCHRL claims on the merits and for entry of summary judgment in favor of Appellees as to
19 Talwar’s NYSHRL claims.
20
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
6