18‐1248‐cv Lue v. JPMorgan Chase & Co.

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 24th day of April, two thousand nineteen.

PRESENT: RICHARD C. WESLEY, DENNY CHIN, Circuit Judges, LEWIS A. KAPLAN, District Judge.*

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CANDICE LUE, Plaintiff‐Appellant,

v. 18‐1248‐cv

JPMORGAN CHASE & CO., ALEX KHAVIN, FIDELIA SHILLINGFORD, JOHN VEGA, HELEN DUBOWY, PHILIPPE QUIX, THOMAS POZ, CHRIS LIASIS, MICHELLE SULLIVAN, Defendants‐Appellees.**

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* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. ** The Clerk of Court is instructed to amend the official caption to conform to the above. FOR PLAINTIFF‐APPELLANT: CANDICE LUE, pro se, Lodi, New Jersey.

FOR DEFENDANTS‐APPELLEES: ANSHEL J. KAPLAN (Robert S. Whitman, on the brief), Seyfarth Shaw LLP, New York, New York.

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

New York (Nathan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Plaintiff‐appellant Candice Lue, proceeding pro se, appeals the district

courtʹs judgment entered March 28, 2018, in favor of defendants‐appellees JPMorgan

Chase & Co. and its employees (collectively, ʺdefendantsʺ), dismissing Lueʹs

employment discrimination and retaliation claims.1 By memorandum and order

entered March 27, 2018, the district court granted defendantsʹ motion for summary

judgment. We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

1 Lue does not reference her state tort claims, hostile work environment claim, or her ʺaiding and abettingʺ and ʺfailure to take steps to preventʺ claims, except to the extent that she refers this Court to arguments in documents outside her appellate brief. Hence, we deem these claims abandoned. See Lederman v. N.Y.C. Dep’t of Parks & Recreation,

, 203 n.1 (2d Cir. 2013) (ʺAppellants do not preserve questions for appellate review by merely incorporating an argument made to the district court by reference in their brief.ʺ (internal quotation marks and alterations omitted)); LoSacco v. City of Middletown,

(2d Cir. 1995) (issues not raised in a pro se appellate brief are abandoned).

2 I. Procedural Matters

Lue argues that the district court abused its discretion in striking her

opposition to summary judgment, imposing page limits on any new submission, and

ultimately deeming defendantsʹ summary judgment motion unopposed. We review

the district courtʹs grant of defendantsʹ motion to strike and its imposition of page limits

for abuse of discretion. See Design Strategy, Inc. v. Davis,

(2d Cir.

2006) (motion to strike)2; Pa. Pub. Sch. Emps.ʹ Ret. Sys. v. Morgan Stanley & Co.,

, 121‐22 (2d Cir. 2014) (imposition of page limits). We likewise consider the district

courtʹs deeming defendantsʹ summary judgment motion unopposed ‐‐ as we would its

grant of default judgment ‐‐ for abuse of discretion. City of New York v. Mickalis Pawn

Shop, LLC,

(2d Cir. 2011); see also Caban Hernandez v. Philip Morris USA,

Inc.,

, 7‐8 (1st Cir. 2007).

Lue submitted a lengthy opposition that was out of proportion to the

defendantsʹ motion, including a 198‐page memorandum of law in response to

defendantsʹ 25 pages. The district courtʹs decision to strike this submission and to

instruct Lue to resubmit her opposition in compliance with a reasonable page limitation

2 There is some confusion as to whether a district courtʹs grant of a motion to strike is reviewed for manifest error or abuse of discretion. Compare Hollander v. Am. Cyanamid Co.,

(2d Cir. 1999) (ʺWe will not disturb a district courtʹs grant of a motion to strike unless manifestly erroneous.ʺ), with Design Strategy, Inc.,

(analyzing motion to strike under abuse of discretion standard). Because we conclude that the district courtʹs decision to strike Lueʹs opposition survives the more lenient abuse of discretion standard, we need not resolve this inconsistency here.

3 was not an abuse of discretion. Although Lue argues that the courtʹs page limits

would have prevented her from presenting ʺninety percentʺ of her arguments, she

made no attempt to comply with the district courtʹs instructions and has not shown that

she could not adequately oppose summary judgment within the courtʹs limits.

Contrary to Lueʹs argument on appeal, the district court did not impose page limits on

affidavits or other evidence. Lueʹs argument regarding retroactive application of

individual rules of practice is similarly meritless; the district court struck her filings as

ʺoverly burdensomeʺ and not for failure to comply with these rules, and the record

reflects that Lue was served with defendantsʹ motion to strike. Under these

circumstances, the district courtʹs decision to strike Lueʹs submission and impose page

limits was well within the range of permissible decisions.3

The district court did not abuse its discretion in deeming defendantsʹ

summary judgment motion unopposed, given Lueʹs repeated failure to submit a

compliant opposition. Lue failed to file an opposition in compliance with the courtʹs

orders, despite eight extensions of time to comply and five warnings of the consequence

of continued noncompliance. See Fed. R. Civ. P. 83(b). ʺ[A]ll litigants, including pro

ses, have an obligation to comply with court orders. When they flout that obligation

3 Lue claims judicial bias because the district court struck her opposition, referred the case to mediation, and declined to enter default judgment in her favor. She also asserts, incorrectly, that the district court misquoted her in an order. These arguments fail because the adverse rulings alleged here do not support a claim of judicial bias. See Zuhua Chen v. Chen Qualified Settlement Fund,

(2d Cir. 2009).

4 they, like all litigants, must suffer the consequences of their actions. Here, [Lue] was

clearly warned about the consequences that would follow if [s]he disobeyed the courtʹs

order.ʺ McDonald v. Head Criminal Court Supervisor Officer,

(2d Cir.

1988); see also LeSane v. Hallʹs Sec. Analyst, Inc.,

(2d Cir. 2001) (ʺ[I]n

cases such as these, resolutions on summary judgment (with defendantʹs Rule 56.1

statements deemed admitted by plaintiff) are generally to be preferred to dismissals

under Rule 41(b).ʺ). Accordingly, the district court did not abuse its discretion in

deeming the motion unopposed.

II. Summary Judgment

ʺWe review de novo the award of summary judgment, construing the

evidence in the light most favorable to the nonmoving party and drawing all reasonable

inferences and resolving all ambiguities in its favor.ʺ Jaffer v. Hirji,

(2d Cir. 2018) (internal quotation marks and alterations omitted). Nevertheless, the

non‐moving party may not rely upon ʺconclusory statements or mere allegationsʺ; she

must ʺgo beyond the pleadings, and by . . . her own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate specific facts showing that

there is a genuine issue for trial.ʺ Davis v. New York,

(2d Cir. 2002)

(internal quotation marks omitted). Where a motion for summary judgment is

unopposed, summary judgment is proper only if the court is satisfied that the moving

5 party has met its burden with sufficient support in the record evidence. Vt. Teddy Bear

Co. v. 1‐800 Beargram Co.,

, 244 (2d Cir. 2004).

We note that although defendantsʹ motion for summary judgment was

deemed unopposed, the district court afforded ʺadditional careʺ to Lueʹs position

because of her status as a pro se litigant, and because extra caution should be exercised

in ʺgranting summary judgment to an employer when its intent is at issue.ʺ See Lue v.

JPMorgan Chase & Co., No. 16‐cv‐3207,

, at *5 (S.D.N.Y. Mar. 27, 2018).

In addition, the district court relied only on defendantsʹ factual assertions that were

independently supported by evidence in the record. Id. at *2.

A. Disparate Treatment

The district court properly granted summary judgment on Lueʹs disparate

treatment claims because the record does not contain evidence from which a reasonable

jury could find that an adverse employment action took place under circumstances

giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green,

(1973); Littlejohn v. City of New York,

(2d Cir. 2015).

The district court did not, as Lue contends, improperly rely on her supervisorʹs race to

conclude that Lue had not experienced discrimination. See Feingold v. New York,

(2d Cir. 2004) (noting that courts may not apply a ʺconclusive

presumptionʺ that employers will not discriminate against members of their own race).

Indeed, the district court also considered that Lueʹs white predecessor received the

6 same assignments as Lue and was subject to the same requirements to work from home;

the same person made both the decision to hire Lue and the decision to fire her; and the

lack of evidence of similarly situated employees who were treated more favorably or

specific statements suggesting that defendantsʹ actions were racially motivated. Lue,

, at *6‐7. Although the evidence shows that Lue repeatedly

complained that defendantsʹ actions were discriminatory, no other evidence in the

record supports a racial motivation. The district court correctly concluded that such

evidence was insufficient for Lueʹs disparate treatment claims to survive a motion for

summary judgment. See Davis,

.

B. Retaliation

Lue failed to show that a genuine issue of material fact existed with

respect to her retaliation claim. A plaintiff alleging retaliation must show a causal

connection between her complaints of discrimination and the defendantʹs actions. See

Van Zant v. KLM Royal Dutch Airlines,

(2d Cir. 1996). Lue makes a

conclusory allegation of retaliatory intent, but the only evidence she cites in support is

the fact that some of the adverse actions followed her complaints of discrimination.

ʺWhere timing is the only basis for a claim of retaliation, and gradual adverse job

actions began well before the plaintiff had ever engaged in any protected activity, an

inference of retaliation does not arise.ʺ Slattery v. Swiss Reinsurance Am. Corp.,

(2d Cir. 2001). Here, the record shows that defendantsʹ criticisms of Lueʹs

7 communication style and her response to feedback predated her complaints of

discrimination. Therefore, in the absence of other evidence of an intent to retaliate, we

conclude that the district court properly granted summary judgment on Lueʹs

retaliation claim. See

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

without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

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