15‐3465‐cv Forte v. Liquidnet Holdings, Inc., et al.

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 10th day of January, two thousand seventeen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

LUGENE A. FORTE, Plaintiff‐Appellant,

v. 15‐3465‐cv

LIQUIDNET HOLDINGS, INC., SETH MERRIN, Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: JAMES G. MCCARNEY, Law Offices of James G. McCarney, New York, New York.

FOR DEFENDANTS‐APPELLEES: A. MICHAEL WEBER (Joshua D. Kiman, on the brief), Littler Mendelson, P.C., New York, New York.

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

New York (Torres, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Lugene A. Forte appeals from a judgment of the district

court entered September 30, 2015 in favor of defendants‐appellees Liquidnet Holdings,

Inc. (ʺLiquidnetʺ) and Seth Merrin, dismissing her claims of gender discrimination under

Title VII of the Civil Rights Act of 1964 (ʺTitle VIIʺ), 42 U.S.C. § 2000e et seq.; the New

York State Human Rights Law (ʺNYSHRLʺ),

et seq.; and the New

York City Human Rights Law (ʺNYCHRLʺ), N.Y.C. Admin. Code § 8‐101 et seq. By

Memorandum and Order dated September 30, 2015, the district court granted

defendantsʹ motion to preclude plaintiffʹs expert report pursuant to Federal Rule of

Evidence 702 and for summary judgment pursuant to Federal Rule of Civil Procedure

56. We assume the partiesʹ familiarity with the underlying facts, procedural history,

and issues on appeal.

Forte was employed at Liquidnet from December 2011 until she was

discharged in November 2013. Liquidnet is majority‐owned and controlled by Merrin,

its Chief Executive Officer. During the relevant time period, Forte served as the Head of

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U.S. Sales and Trading and later as the Head of the Global Performance Team.

Forte alleges she was dismissed because of her gender. Defendants argue

Forteʹs termination was based solely on her performance and had nothing to do with her

gender. We address in turn Forteʹs claims on appeal that the district court: (1) abused

its discretion in excluding her expert evidence of a pay disparity in Liquidnetʹs sales

department, and (2) erred in granting summary judgment.

1. Motion to Exclude

We review a district courtʹs decision to exclude expert testimony for abuse

of discretion. See Amorgianos v. Natʹl R.R. Passenger Corp.,

(2d Cir.

2002). On appeal, Forte argues the district court abused its discretion in excluding the

report prepared by her expert, Christopher Erath, Ph.D.

Rule 702 of the Federal Rules of Evidence, which governs the admissibility

of expert testimony, provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expertʹs scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993), the

Supreme Court charged trial judges with the responsibility of acting as gatekeepers to

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exclude unreliable expert testimony. Accordingly, district courts must ʺmake certain

that an expert . . . employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.ʺ Kumho Tire Co. v. Carmichael,

(1999).

The district court did not abuse its discretion in excluding the Erath report

under Rule 702, on the grounds that the report was not the product of reliable principles

and methods. First, as Dr. Erath admitted, he did not independently verify any of the

data he used in the report ‐‐ he simply input the numbers he was given by Forte and

used them to calculate pay discrepancies. A failure to validate data by itself can

constitute grounds for excluding an expert report. See, e.g., Munoz v. Orr,

,

301‐02 (5th Cir. 2000) (noting that an expertʹs reliance on data provided by a plaintiff,

without conducting independent verification, gives rise to ʺcommon‐sense skepticismʺ

regarding the expertʹs evaluation). Second, Dr. Erath did not control for any variable

other than gender when measuring pay disparities. To determine whether gender

actually causes a pay discrepancy, Erath should have performed a regression analysis to

control for other variables such as seniority, productivity, education, experience, or

performance reviews, which might have independently affected compensation. See,

e.g., Ste. Marie v. E. R. Assʹn,

, 400 (2d Cir. 1981) (finding statistically

significant correlation between gender and pay disparity insufficient to prove

discrimination, where analysis failed to account for other contributing variables); see also

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Tagatz v. Marquette Univ.,

(7th Cir. 1988) (describing the importance of

controlling for alternative independent variables when using statistical evidence in Title

VII pay disparity cases). Statistical analyses that make ʺno effortʺ to control for

non‐discriminatory causes of pay disparities are generally inadmissible in Title VII cases.

See, e.g., Bickerstaff v. Vassar Coll.,

(2d Cir. 1999).

Moreover, the district court did not abuse its discretion in concluding that

the report was of little relevance to Forteʹs claims, because Dr. Erath analyzed purported

pay disparities only among employees with a lower level of seniority than Forte. See

Fed. R. Evid. 403.

2. Motion for Summary Judgment

ʺWe review de novo the district courtʹs grant of summary judgment,

construing the evidence in the light most favorable to the non‐moving party and

drawing all reasonable inferences in her favor.ʺ Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc.,

(2d Cir. 2013). A district court may grant summary judgment

if ʺthere is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). We ask whether ʺthe record taken as

a whole could not lead a rational trier of fact to find for the non‐moving party.ʺ

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

(1986). On appeal, Forte

argues the district court erred in granting summary judgment on her gender

discrimination claims.

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We generally analyze gender discrimination claims under the McDonnell

Douglas burden‐shifting framework. See Walsh v. N.Y.C. Hous. Auth.,

, 74‐75

(2d Cir. 2016) (citing McDonnell Douglas Corp. v. Green,

(1973)). Under that

framework, once the plaintiff demonstrates a prima facie case of discrimination, the

burden shifts to the defendant to provide a legitimate, non‐discriminatory reason for its

actions. See id. at 75. If the defendant makes such a showing, ʺthe plaintiffʹs admissible

evidence must show circumstances that would be sufficient to permit a rational finder of

fact to infer that the defendantʹs employment decision was more likely than not based in

whole or in part on discrimination.ʺ Id. (quoting Feingold v. New York,

(2d Cir. 2004)). In other words, to survive summary judgment, a plaintiff must come

forward with evidence to support the conclusion that the defendantʹs proffered reason is

a pretext for discrimination. Kirkland v. Cablevision Sys.,

(2d Cir. 2014)

(per curiam); Kessler v. Westchester Cty. Depʹt of Soc. Servs.,

(2d Cir. 2006).

Assuming Forte demonstrated a prima facie case of gender discrimination,

defendants presented substantial evidence that they fired Forte for performance issues.

Indeed, defendants presented affidavits and deposition testimony from many of Forteʹs

supervisors and subordinates attesting to various shortcomings in her performance; they

also provided contemporaneous documentation of her colleaguesʹ concerns.

Forte also argues that she was paid less than other, similarly situated male

employees, and that the district court used the wrong comparators when assessing her

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pay disparity claim. This argument fails. Whether two employees are similarly

situated is a question of fact for the jury, but the plaintiff bears the burden of proving that

the comparator is appropriate. Brown v. Daikin Am., Inc.,

(2d Cir. 2014).

Forte has failed to produce any evidence that her proposed comparators were

appropriate. Alfred Eskandar, her predecessor as head of U.S. Sales, had spent over a

decade at Liquidnet, while Forte herself was newly hired. Eskandarʹs base salary was

not considerably higher than Forteʹs, and Forte has introduced no evidence to rebut

Liquidnetʹs argument that this difference was attributable to Eskandarʹs longer tenure.

Forteʹs other proposed comparators are even less plausible. She claims that she should

have earned as much as the head of Liquidnetʹs Global Performance Team and her

successor as head of U.S. Sales combined, because she had previously performed both

menʹs jobs on her own. But the record does not support this contention: Forte was

transferred from U.S. Sales to the Global Performance Team, and terminated shortly

thereafter. She never performed both roles concurrently for a meaningful period of

time.

Forteʹs allegations of discriminatory treatment are not supported by

evidence of pretext from which a rational fact‐finder could conclude that Forte was

terminated for discriminatory reasons. Reliance on conclusory statements or mere

allegations is not sufficient to defeat summary judgment. See McPherson v. N.Y.C. Depʹt

of Educ.,

, 215 n.4 (2d Cir. 2006) (citing Ying Jing Gan v. City of N.Y.,

(2d Cir. 1993)). For example, while Forte conclusorily alleges in her appellate

brief that women were ʺtreated as second class citizensʺ and were subjected to Merrinʹs

ʺsexist attitudes,ʺ Appellantʹs Br. at 3, she does not cite to any concrete evidence in the

record to support the allegations. In contrast, defendants submitted affidavits from

employees, including women, specifically refuting the claims. In addition, Forte states

in conclusory fashion that she was ʺexcludedʺ from board meetings once she complained

about the firmʹs maternity leave policy, but she provides no details and cites no evidence

that she was ever excluded from board meetings, let alone that she was excluded for

gender‐based reasons. Forte also relies on Merrinʹs single off‐color reference to a

Saturday Night Live spoof that included a sexist phrase, but it is undisputed that this

comment was not directed at Forte and Forte has not pointed to any evidence that she

was even present when it was made.

Even assuming Forte has presented some evidence of discrimination, she

has not presented ʺʹsufficient evidence to support a rational finding that the legitimate,

non‐discriminatory reasons proffered by the [defendant] were false, and that more likely

than not [discrimination] was the real reason for the [employment action].ʹʺ Weinstock v.

Columbia Univ.,

(2d Cir. 2000) (quoting Woroski v. Nashua Corp.,

(2d Cir. 1994)). Considering the record as a whole, we conclude a reasonable jury

could not find that Forte was discriminated against on the basis of her gender.

Forte also argues that, at a minimum, the case should be remanded for the

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district court to reconsider her NYCHRL claims. The district court held that Forte had

waived her NYCHRL claims by confining her analysis on summary judgment to a single

footnote. And, as Forte admits on appeal, her ʺargumentʺ regarding these claims was

merely a recitation of the relevant standard of review. Although in Mihalik we

instructed district courts that the standard for liability is broader under the NYCHRL

and that courts must analyze NYCHRL claims separately and independently from any

federal and state law claims, Mihalik,

, in this case we cannot fault the

district court for what is indeed a cursory analysis where plaintiff did not engage in the

proper analysis herself. Under these circumstances, we believe the district courtʹs

finding of waiver was correct.

We have considered all of Forteʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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