Volat v. City of New York
Opinion of the Court
SUMMARY ORDER
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-appellees’ motion for summary judgment dismissing Volat’s discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112, 12203, and declining to exercise supplemental jurisdiction over his New York City Human Rights Law (“NYCHRL”) claims.
We review the district court’s grant of summary judgment de novo, with the view that “[sjummary judgment is appropriate
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 Camiolo’s 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. Additionally, many of Volat’s 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 Camiolo’s leadership in front of parents at a back to school night presentation, (3) told a crying first grader that he “better get up off the floor or somebody’s going to touch your pencil case,” and (4) called his principal a “joke” 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., 224 F.3d 33, 42 (2d Cir. 2000) (“[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.” (alterations and internal quotation marks omitted)). Accordingly, the district court did not err by granting summary judgment dismissing this claim.
We have reviewed Volat’s remaining arguments and conclude they are without merit. Accordingly, we AFFIRM the memorandum and order of the district court.
. 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 “final decision” within the meaning of 28 U.S.C. § 1291. See Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 66 (2d Cir. 2011) (finding this Court has jurisdiction to review a "final decision” — “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment” (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945))).
Reference
- Full Case Name
- Eric VOLAT v. CITY OF NEW YORK, New York City Department of Education, Angela Camiolo, in her official and individual capacity
- Status
- Published