Vargas v. Morgan Stanley , 438 F. App'x 7 ( 2011 )

10-4043-cv
Vargas v. Morgan Stanley
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9th day of September, two thousand eleven.
PRESENT:
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
EDWARD R. KORMAN,
District Judge.*
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RUBEN VARGAS,
Plaintiff-Appellant,
-v.- 10-4043-cv
MORGAN STANLEY, MORGAN STANLEY & CO., INC.,
JOHN ROBINSON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: SHAFFIN A. DATOO (Kenneth P.
Thompson, on the brief), Thompson
Wigdor & Gilly, LLP, New York, New
York.
*
The Honorable Edward R. Korman, of the United States
District Court for the Eastern District of New York, sitting by
designation.
FOR DEFENDANTS-APPELLEES: J. MICHAEL RIORDAN (Cora E.
MacLean, on the brief), McElroy,
Deutsch, Mulvaney & Carpenter, LLP,
New York, New York.
Appeal from the United States District Court for the
Southern District of New York (Daniels, J.). UPON DUE
CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the judgment of the district court is AFFIRMED in part and
VACATED AND REMANDED in part.
Plaintiff-appellant Ruben Vargas appeals from a
decision of the United States District Court for the Southern
District of New York, filed September 29, 2010, granting summary
judgment in favor of defendants Morgan Stanley, Morgan Stanley &
Co. Incorporated (together, the "Company"), and Vargas's
supervisor, John Robinson. Vargas commenced this action against
defendants on November 5, 2008, alleging disparate treatment and
unlawful termination on account of his race, color, and national
origin under Title VII, 42 U.S.C. §§ 2000e et seq. ("Title VII");
42 U.S.C. § 1981 ("§ 1981"); the New York State Human Rights Law
("NYSHRL"), N.Y. Exec. Law §§ 290 et seq. (McKinney 2009); and
the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code
§§ 8-101 et seq. Familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal is
assumed.
We review a grant of summary judgment de novo.
Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir. 2000).
Summary judgment is appropriate if there is no genuine dispute as
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to any material fact, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In making
this determination, "the court must 'assess the record in the
light most favorable to the non-movant and . . . draw all
reasonable inferences in [the non-movant's] favor.'" Weinstock,
224 F.3d at 41 (quoting Del. & Hudson Ry. Co. v. Consol. Rail
Corp., 902 F.2d 174, 177 (2d Cir. 1990)).
Vargas, a Hispanic male of Puerto Rican descent, joined
the Company as a research associate in its Fixed Income Division
in August 2004. He was transferred to its Investment Grade Sales
Group (the "IGSG") as a credit sales associate in July 2005.
Vargas alleges that after the Company appointed Robinson head of
IGSG in May 2006, he was subjected to disparate treatment in his
employment until his termination on October 17, 2007 as part of a
Reduction in Force ("RIF"). At all relevant times, Vargas was
the only Hispanic credit sales associate in the IGSG.
At summary judgment, the district court determined
that: (1) Vargas failed to make out a prima facie case of
discrimination with respect to his termination claim; (2) the
relevant statute of limitations barred all of his pre-termination
claims, or alternatively, he failed to establish a prima facie
case; and (3) his claims under § 1981, the NYSHRL, and the NYCHRL
were not viable because they were analyzed under the same
standards as Title VII.1
1
The standard of proof for claims brought under § 1981
and the NYSHRL is identical to that of Title VII claims. See
Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010)
(addressing § 1981 claims); Torres v. Pisano, 116 F.3d 625, 629
n.1 (2d Cir. 1997) (addressing NYSHRL claims).
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On appeal, Vargas challenges the district court's
rulings that he has failed to establish a prima facie case of
disparate treatment and that all of his pre-termination claims
are time-barred. See Patterson v. Cnty. of Oneida, 375 F.3d 206,
225 (2d Cir. 2004) (defining three-year limitations period in New
York for § 1981 claims); N.Y. C.P.L.R. § 214(2) (McKinney 2009)
(same, for NYSHRL claims). We hold that, timely or not, his
Title VII, § 1981, and NYSHRL claims are not actionable.
Although Vargas raises fair issues regarding whether he has shown
that defendants' pre-termination conduct could be considered
"adverse employment actions," and as to the timeliness of his
claims under § 1981 and NYSHRL, for the reasons that follow, we
conclude that Vargas's pre-termination and termination claims
fail as a matter of law under Title VII, § 1981, and the NYSHRL.
The "ultimate issue" in an employment discrimination
case is whether the alleged adverse action was motivated at least
in part by an impermissible discriminatory reason. Fields v.
N.Y. State Office of Mental Retardation & Dev'l Disabilities, 115
F.3d 116, 119 (2d Cir. 1997). Where an employer has proffered a
legitimate, non-discriminatory reason for an action, a plaintiff
will survive a motion for summary judgment only by adducing
evidence that would allow a reasonable jury to infer that "it is
more likely than not that [plaintiff] was subjected to [that
action] based on an illegal discriminatory motive." Greenway v.
Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998) (citing St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 511 (1993)). In
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other words, even if the employer's reasons are rejected, "absent
some evidence that it was motivated by discriminatory
intent . . . , bad treatment does not establish a violation of
Title VII." Pollis v. New Sch. for Soc. Research, 132 F.3d 115,
124 (2d Cir. 1997) (emphasis added).
Upon reviewing the record, we conclude that Vargas did
not produce evidence sufficient to support an inference that
defendants' stated reasons for their employment decisions were
pretextual or that Vargas's race, color, or national origin was a
motivating factor in defendants' decisions. Vargas contends that
he was treated less favorably than other employees, but he does
so in conclusory fashion, without offering any concrete evidence
to show that any of the purported mistreatment was the result of
discriminatory animus. At best, the uniformly race-neutral
incidents Vargas points to in the record reflect that Robinson
singled him out because he "disliked" Vargas or his facial hair,
or "treated him badly" due to a "personal agenda," none of which
is sufficient to suggest animus motivated by Vargas's protected
status. Idrees v. City of New York, No. 04 Civ. 2197 (GWG), 2009
WL 142107, at *10 (S.D.N.Y. Jan. 21, 2009); see also Alfano v.
Costello, 294 F.3d 365, 378 (2d Cir. 2002) (holding that "some
circumstantial or other basis" is necessary for inference that
incidents "neutral on their face were in fact discriminatory").
With respect to Vargas's claims under the NYCHRL,
however, we find that the district court erred in dismissing them
under the same analysis it applied to his federal and state
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claims. Pursuant to the New York City Civil Rights Restoration
Act, N.Y.C. Local Law No. 85 (2005), "courts [must] be sensitive
to the distinctive language, purposes, and method of analysis
required by the [NYCHRL], requiring an analysis more stringent
than that called for under either Title VII or the [NYSHRL]."
Williams v. N.Y.C. Housing Auth., 872 N.Y.S.2d 27, 30-31 (1st
Dep't 2009); see Loeffler v. Staten Island Univ. Hosp., 582 F.3d
268, 278 (2d Cir. 2009) (confirming that "claims under the
[NYCHRL] must be reviewed independently from and 'more liberally'
than their federal and state counterparts") (quoting Williams,
872 N.Y.S.2d at 31).
The district court failed to analyze Vargas's City
claims independently from his federal and state law claims, and
we will not resolve these claims in the first instance.
Accordingly, we remand the NYCHRL claims to the district court,
to consider whether to exercise supplemental jurisdiction over
them pursuant to 28 U.S.C. § 1367(c), and if it decides to do so,
to consider the NYCHRL claims under the appropriate standard,
separate and apart from the federal and state claims.
We therefore VACATE the district court's judgment with
respect to Vargas's NYCHRL claims and REMAND those claims to the
district court to determine whether to exercise supplemental
jurisdiction or to dismiss without prejudice to refiling in state
court. We AFFIRM the district court's judgment in all other
respects.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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