15‐1434‐cv Volat 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 21st day of March, two thousand sixteen.

PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

ERIC VOLAT, Plaintiff‐Appellant,

v. 15‐1434‐cv

CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, ANGELA CAMIOLO, in her official and individual capacity, Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: MICHAEL J. WILLEMIN, David E. Gottlieb, Wigdor LLP, New York, New York.

FOR DEFENDANTS‐APPELLEES: CECELIA CHANG, Damion K. L. Stodola, Assistant Corporation Counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Broderick, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the memorandum and order of the district court is

AFFIRMED.

Plaintiff‐appellant Eric Volat appeals an April 17, 2015 memorandum and

order of the United States District Court for the Southern District of New York granting

defendants‐appelleesʹ motion for summary judgment dismissing Volatʹs discrimination

and retaliation claims under the Americans with Disabilities Act (ʺADAʺ),

, 12203, and declining to exercise supplemental jurisdiction over his New York

City Human Rights Law (ʺNYCHRLʺ) claims.1 The district court concluded that Volat

failed to present evidence from which a reasonable trier of fact could find that

defendantsʹ legitimate, nondiscriminatory reason for denying him tenure ‐‐ his

performance ‐‐ was pretext for discrimination or retaliation. We assume the partiesʹ

1 The district court did not enter a separate judgment dismissing the action as required by Fed. R. Civ. P. 58(a). When a judgment is required to be set out in a separate document but is not, judgment is deemed entered 150 days after the entry of the dispositive order. Fed. R. Civ. P. 58(c)(2)(B). Despite the lack of a judgment, this Court has jurisdiction to hear the appeal of the order, which was a ʺfinal decisionʺ within the meaning of

. See Leftridge v. Conn. State Trooper Officer No. 1283,

(2d Cir. 2011) (finding this Court has jurisdiction to review a ʺfinal decisionʺ ‐‐ ʺone which ends the litigation on the merits and leaves nothing for the court to do but execute the judgmentʺ (quoting Catlin v. United States,

(1945))).

‐ 2 ‐ familiarity with the underlying facts, procedural history of the case, and issues on

appeal.

We review the district courtʹs grant of summary judgment de novo, with

the view that ʺ[s]ummary judgment is appropriate when there is ʹno genuine dispute as

to any material factʹ and the moving party is ʹentitled to judgment as a matter of law.ʹʺ

Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Commʹn,

(2d Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). ʺThere is no ʹgenuineʹ dispute when ʹthe

record taken as a whole could not lead a rational trier of fact to find for the non‐moving

party.ʹʺ

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)). Upon review, we conclude that the district court correctly granted defendantsʹ

motion for summary judgment and affirm for substantially the reasons stated by the

district court. We add only the following.

First, Volat has identified no evidence in the record that would permit a

jury to find that his disability ‐‐ his HIV positive status ‐‐ was a motivating factor in

Principal Camioloʹs recommendation to deny tenure. Accordingly, his discrimination

claim under the ADA was properly dismissed.

Second, as for his retaliation claim, Volat points to the temporal proximity

between his complaint of discrimination and a number of disciplinary actions and the

effort on the part of Camiolo to create a paper trail. The record, however, contains

indisputable evidence of performance issues arising before Volat made his complaint,

including a matter requiring discipline and issues warranting counseling and support.

‐ 3 ‐ Additionally, many of Volatʹs performance issues were observed by other individuals

who were not named as defendants in this action, including Vice Principal Forschein,

other Department of Education employees, students, and parents. While Volat

contested a number of factual matters, such as precisely what happened during the

water fountain incident, he also admitted that he (1) was struggling with teaching first

grade, (2) challenged Camioloʹs leadership in front of parents at a back to school night

presentation, (3) told a crying first grader that he ʺbetter get up off the floor or

somebodyʹs going to touch your pencil case,ʺ and (4) called his principal a ʺjokeʺ to her

face. J. App. at 256, 289, 437. Taking the record as a whole, we conclude that a

reasonable jury could not have found in favor of Volat on his retaliation claim. See

Weinstock v. Columbia Univ.,

(2d Cir. 2000) (ʺ[P]laintiff must produce not

simply some evidence, but sufficient evidence to support a rational finding that the

legitimate, non‐discriminatory reasons proferred by the defendant were false, and that

more likely than not [retaliation] was the real reason for the employment action.ʺ

(alterations and internal quotation marks omitted)). Accordingly, the district court did

not err by granting summary judgment dismissing this claim.

We have reviewed Volatʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the memorandum and order of the district

court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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