20-3125-cv Connolly 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 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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 22nd day of March, two thousand twenty-two. 4 5 PRESENT: REENA RAGGI, 6 GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 DELANO CONNOLLY, 11 12 Plaintiff-Appellant, 13 14 v. No. 20-3125-cv 15 16 CITY OF NEW YORK, JOSEPH CARDIERI, 17 PAUL SAVARESE, IAN SANGENITO, ALAN 18 SPUTZ, SUSAN STARKER, FREDDA MONN, 19 20 Defendants-Appellees. 21 ------------------------------------------------------------------ 1 FOR PLAINTIFF-APPELLANT: MICHAEL G. O’NEILL, New 2 York, NY 3 4 FOR DEFENDANTS-APPELLEES: MELANIE T. WEST, Assistant 5 Corporation Counsel (Richard 6 Dearing, Barbara Graves- 7 Poller, on the brief), for James E. 8 Johnson, Corporation Counsel 9 of the City of New York, New 10 York, NY

11 Appeal from a judgment of the United States District Court for the Eastern

12 District of New York (William F. Kuntz, Judge).

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

14 AND DECREED that the judgment of the District Court is AFFIRMED in part,

15 VACATED in part, and REMANDED for further proceedings consistent with this

16 order.

17 Delano Connolly, an attorney for the Administration for Children’s

18 Services (“ACS”) of the City of New York, claimed that the City unlawfully

19 discriminated and retaliated against him in violation of Title VII of the Civil

20 Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and that the City and the individual

21 Defendants-Appellees also violated

and the New York City

22 Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. Those claims were

2 1 based on ACS’s transferring Connolly to a different unit, conducting a lengthy

2 investigation of sexual harassment allegations made against him by a coworker,

3 denying him promotion, suspending him for alleged unprofessional conduct

4 during interactions with a contract agency’s employee in family court, and other

5 actions short of termination that he viewed as adverse.

6 Connolly now appeals from the August 19, 2020 judgment dismissing

7 some of his retaliation claims as time-barred. Further, he argues that genuine

8 disputes of material fact precluded summary judgment as to his claims of race

9 and gender discrimination as well as retaliation. We assume the parties’

10 familiarity with the underlying facts and the record of prior proceedings, to

11 which we refer only as necessary to explain our decision to affirm in part, vacate

12 in part, and remand for further proceedings.

13 We review de novo a district court’s grant of both dismissal under Federal

14 Rule of Civil Procedure 12(b)(6) and summary judgment under Rule 56. See

15 Simmons v. Roundup Funding, LLC,

(2d Cir. 2010); Ya-Chen

16 Chen v. City Univ. of N.Y.,

(2d Cir. 2015). At the summary

17 judgment stage, we look to “whether a fair-minded jury could return a verdict

3 1 for the [non-moving] party on the evidence presented.” Jeffreys v. City of New

F.3d 549, 553 (2d Cir. 2005) (citation omitted).

3 I. Discrimination under Title VII,

, and the NYCHRL

4 We analyze discrimination claims under Title VII and § 1983 under the

5 familiar three-step McDonnell Douglas burden-shifting framework. See

6 McDonnell Douglas Corp. v. Green,

(1973); Littlejohn v. City of

7 New York,

(2d Cir. 2015). First, the plaintiff must establish a

8 prima facie case of discrimination. Vega v. Hempstead Union Free Sch. Dist.,

9

(2d Cir. 2015). Second, if the plaintiff has established a prima

10 facie case, the burden “shifts to the employer to ‘articulate some legitimate,

11 nondiscriminatory reason’ for the disparate treatment.”

(quoting McDonnell

12 Douglas Corp.,

). Third, “[i]f the employer articulates such a

13 reason for its actions, the burden shifts back to the plaintiff to prove that the

14 employer’s reason was in fact pretext for discrimination.”

(quotation marks

15 omitted). Under the NYCHRL, by contrast, an employer charged with a claim

16 of unlawful discrimination is entitled to summary judgment “if the record

17 establishes as a matter of law that discrimination play[ed] no role in its actions.”

4 1 Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,

, 110 n.8 (2d Cir.

2 2013) (quotation marks omitted).

3 In granting summary judgment in favor of the City and the individual

4 defendants, the District Court concluded that Connolly failed to establish a

5 prima facie case of race discrimination under Title VII and § 1983, except as to his

6 failure-to-promote claims, which Connolly has abandoned on appeal. See

7 Appellant’s Br. at 55 n.14. We agree with the District Court that Connolly’s

8 claims of race and sex discrimination stemming from his temporary transfer to

9 ACS’s Legal Compliance Unit fail because Connolly failed to adduce either direct

10 evidence of intent to discriminate or any evidence that “give[s] rise to an

11 inference of discrimination.” Vega,

. We likewise conclude that

12 Connolly failed to adduce such evidence with respect to ACS’s investigations of

13 his alleged misconduct, and thus that his Title VII and § 1983 discrimination

14 claims stemming from those investigations fail as well. We conclude further

15 that the Defendants-Appellees were entitled to judgment in their favor on all of

16 the Title VII and § 1983 discrimination claims at issue on appeal because

17 Connolly failed to adduce evidence that the Defendants-Appellees’ proffered

5 1 legitimate, non-discriminatory reasons for their employment actions, including

2 the internal investigations of Connolly’s workplace misconduct and the results of

3 those investigations, were a pretext for discrimination based on Connolly’s race

4 or gender. See Graham v. Long Island R.R.,

(2d Cir. 2000). 1

5 Finally, we affirm the District Court’s grant of summary judgment on Connolly’s

6 claims of discrimination under the NYCHRL for the reasons stated by the District

7 Court: Connolly failed to adduce any evidence that discrimination played a role

8 in the Defendants-Appellees’ actions, or that he was treated “less well” because

9 of his race or sex. Mihalik,

& n.8.

10 II. Retaliation under Title VII and

11 We turn next to Connolly’s retaliation claims under Title VII and § 1983,

12 which are also analyzed under the McDonnell Douglas burden-shifting

13 framework. Gorzynski v. JetBlue Airways Corp.,

(2d Cir. 2010);

14 see also Rasmy v. Marriott Int’l, Inc.,

(2d Cir. 2020).

1 Insofar as the District Court did not address this or the preceding point, we “are free to affirm on any ground that finds support in the record, even if it was not the ground upon which the trial court relied.” United States v. Delva,

(2d Cir. 2017) (quotation marks omitted).

6 1 We first address the District Court’s decision to dismiss as time-barred

2 Connolly’s retaliation claims arising before November 20, 2013. The District

3 Court dismissed those claims under Rule 12(b)(6) because he failed to file a

4 charge with the Equal Employment Opportunity Commission (EEOC) within 300

5 days of date the retaliatory act occurred. We conclude that the District Court

6 erred when it failed to consider the “reasonably related” doctrine, which applies

7 where the retaliation is alleged to have occurred, as here, “while the EEOC

8 charge is still pending before the agency.” Duplan v. City of New York, 888

(2d Cir. 2018). In such cases, “the retaliation claim is deemed

10 ‘reasonably related’ to the original EEOC filing,” and the original filing satisfies

11 Title VII’s exhaustion requirement as to the retaliation claim. Owens v. N.Y.C.

12 Hous. Auth.,

, 410–11 (2d Cir. 1991). “The retaliation claim may

13 thus be heard notwithstanding [the] plaintiff’s failure to state it in a separate

14 complaint filed with the EEOC.”

. In dismissing certain retaliation

15 claims as untimely, the District Court relied on the Supreme Court’s decision in

16 National R.R. Passenger Corp. v. Morgan,

(2002). Our decisions

17 after Morgan, however, have continued to recognize an exception for retaliation

7 1 claims “reasonably related” to pending EEOC complaints. See, e.g., Duplan,

2 888 F.3d at 622. The City makes no argument on appeal that those decisions are

3 incorrect. We therefore vacate the District Court’s judgment insofar as it

4 dismissed the claims of retaliation that occurred prior to November 20, 2013.

5 We next address the District Court’s grant of summary judgment

6 dismissing on the merits those retaliation claims that it deemed timely. As to

7 those claims, we conclude that Connolly failed to adduce any evidence that the

8 Defendants-Appellees’ proffered legitimate, non-retaliatory justifications were a

9 pretext for illegal retaliation. Connolly’s evidence of retaliatory motive was

10 conclusory and insufficient to “demonstrate an adequate causal link between his

11 protected activity and allegedly adverse actions.” Agosto v. New York City

12 Dep’t of Educ.,

(2d Cir. 2020). We therefore affirm the District

13 Court’s grant of summary judgment on the retaliation claims it deemed to have

14 been timely filed.

15 We have considered Connolly’s remaining arguments and conclude that

16 they are without merit. For the foregoing reasons, the judgment of the District

8 1 Court is AFFIRMED in part, VACATED in part, and REMANDED for further

2 proceedings consistent with this order.

3 FOR THE COURT: 4 Catherine O=Hagan Wolfe, Clerk of Court

9