Schultz v. Newsday, Inc. , 418 F. App'x 26 ( 2011 )

09-4799-cv
Schultz v. Newsday, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders
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 12th day of April, two thousand and eleven.
PRESENT:
RALPH K. WINTER,
JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
Circuit Judges.
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GERARD E. SCHULTZ,
Plaintiff-Appellant,
v. No. 09-4799-cv
NEWSDAY, INC., TIMOTHY P. KNIGHT,
Defendants-Appellees.*
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FOR PLAINTIFF-APPELLANT: JOSEPH O. GIAIMO, Giaimo Associates, LLP,
Kew Gardens, NY.
*
The Clerk of Court is directed to amend the official caption of this case to conform to the listing of the
parties shown above.
FOR DEFENDANTS-APPELLEES: ERIC G. HOFFMAN, Sidley Austin LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Frederic Block, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiff-appellant Gerard E. Schultz (“plaintiff”) appeals from an October 7, 2009
judgment of the District Court granting summary judgment in favor of defendants-appellees
Newsday, Inc. (“Newsday”) and Timothy P. Knight (jointly, “defendants”) with respect to all of
plaintiff’s federal claims.1 On appeal, plaintiff asserts that defendants were not entitled to summary
judgment on his claims that he was terminated from his employment with Newsday in violation of
his rights under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq., and the Employee
Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.2 We assume the parties’ familiarity with
the remaining facts and procedural history of the case.
We review a district court’s order granting summary judgment de novo, construing the
evidence in the light most favorable to the plaintiff and drawing all inferences in the plaintiff’s favor.
See, e.g., Lumbermens Mut. Cas. Co. v. RGIS Inventory Specialists, LLC, 628 F.3d 46, 51 (2d Cir. 2010).
Here, plaintiff clearly failed to produce evidence sufficient to raise a genuine issue of material fact.
Id. Although he vigorously disagrees with Newsday’s stated reasons for his termination—namely,
that he lied to Tribune Company lawyers investigating allegations of fraud,3 participated in conduct
related to the fraud, and violated Newsday’s Code of Conduct by failing to report the fraud—he fails
to cite any evidence in the record that his termination was related to his taking medical leave or to
his entitlement to disability benefits. Rather, plaintiff principally maintains that his termination was
in retaliation for his role in allegedly “blow[ing] the whistle” on Newsday’s fraud. Plaintiff-
Appellant’s Br. at 7. Accordingly, we find no error in the District Court’s decision to grant summary
judgment in favor of defendants.
1
The judgment also dismissed plaintiff’s claim for relief under the New York State Human Rights Law, N.Y.
Exec. Law § 296 et seq., without prejudice to its renewal in state court.
2
Plaintiff has abandoned his appeal of the order granting summary judgment in favor of defendants with
respect to his claim pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
3
In 2008, Newsday entered into a Deferred Prosecution Agreement with the United States Attorney’s Office
for the Eastern District of New York pursuant to which, inter alia, it admitted that certain Newsday executives had
participated in schemes to defraud its advertisers.
CONCLUSION
We have considered all of plaintiff’s arguments and find them to be without merit. We
AFFIRM the judgment of the District Court substantially for the reasons stated in its careful and
well-reasoned Memorandum and Order, Schultz v. Tribune Co., Inc., No. 06-CV-4800, 2009 WL
3246737 (E.D.N.Y. Oct. 7, 2009).
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court