23-1116-cv Ostrowski v. The Port Authority of NY & NJ

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 “SUMMARY ORDER”). 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 28th day of June, two thousand twenty-four.

PRESENT: RICHARD C. WESLEY, STEVEN J. MENASHI, BETH ROBINSON, Circuit Judges. _____________________________________

Bogdan Ostrowski,

Plaintiff-Appellant,

v. 23-1116

The Port Authority of New York and New Jersey,

Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: BOGDAN OSTROWSKI, pro se, Brooklyn, NY.

FOR DEFENDANT-APPELLEE: KARLA DENALLI, Port Authority of New York and New Jersey Law Department, New York, NY.

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

District of New York (Morrison, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

AFFIRMED.

Plaintiff-Appellant Bogdan Ostrowski, pro se, sued his former employer,

the Port Authority of New York and New Jersey, claiming it discriminated and

retaliated against him and created a hostile work environment because of his age

and national origin in violation of the Age Discrimination in Employment Act

(“ADEA”) and Title VII. The district court converted the Port Authority’s motion

to dismiss into a motion for summary judgment and granted summary judgment

2 to the Port Authority. The district court held that Ostrowski’s claims were time-

barred because he did not timely file an EEOC charge within the 180-day

limitations period and that, in any event, the claims failed on the merits. We agree

with the district court that the claims failed on the merits, so we need not address

the issue of timeliness.

We review a grant of summary judgment de novo. Garcia v. Hartford Police

Dep’t,

(2d Cir. 2013). Summary judgment may be granted only if,

with all ambiguities resolved and all inferences drawn against the moving party,

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”

(quoting Fed. R. Civ. P. 56(a)). Because Ostrowski

is proceeding pro se, we liberally construe his filings “to raise the strongest

arguments they suggest.” Publicola v. Lomenzo,

(2d Cir. 2022)

(quoting McLeod v. Jewish Guild for the Blind,

(2d Cir. 2017)). We

assume the parties’ familiarity with the underlying facts, the procedural history,

and the issues on appeal.

3 I

Ostrowski argues that the district court improperly converted the Port

Authority’s motion to dismiss into a motion for summary judgment. We disagree.

The conversion was proper because Ostrowski was provided with notice and a

reasonable opportunity to present all materials pertinent to the motion.

“When a district court converts a motion to dismiss into one for summary

judgment, ‘[a]ll parties must be given a reasonable opportunity to present all the

material that is pertinent to the motion.’” Sahu v. Union Carbide Corp.,

(2d Cir. 2008) (quoting Fed. R. Civ. P. 12(d)). “The essential inquiry is whether

the appellant should reasonably have recognized the possibility that the motion

might be converted into one for summary judgment or was taken by surprise and

deprived of a reasonable opportunity to meet facts outside the pleadings.”

(quoting In re G. & A. Books, Inc.,

(2d Cir. 1985)).

Here, the Port Authority and the district court advised Ostrowski of the

possibility and consequences of conversion. The Port Authority did so in its

motion to dismiss, and the district court did so at an in-person hearing on that

motion. At the hearing, the district court explained to Ostrowski that the Port

4 Authority had requested to convert the motion to one for summary judgment, and

the district court specifically asked him whether he wished to submit additional

evidence for the court to consider. In response, Ostrowski submitted a USB stick

containing video and audio files in support of his claims. Accordingly, Ostrowski

was not deprived of a reasonable opportunity to present materials pertinent to his

claims. 1

II

The district court correctly held that Ostrowski’s claims, even if timely,

failed on the merits.

Title VII and ADEA claims are analyzed under the McDonnell Douglas

burden-shifting framework. Gorzynski v. JetBlue Airways Corp.,

(2d Cir. 2010). “Under McDonnell Douglas, the plaintiff bears the initial burden of

establishing a prima facie case of discrimination. Once this burden is met, the

defendant must then articulate some legitimate, nondiscriminatory reason for its

1 Ostrowski notes that he did not accede to the Port Authority’s request to convert the motion to dismiss into a motion for summary judgment. However, Rule 12(d) does not require a non-moving party’s affirmative consent for conversion; it requires only adequate notice and an opportunity to respond. See Fed. R. Civ. P. 12(d).

5 action. … When the employer meets its burden, the plaintiff can no longer rely on

the prima facie case, but must prove that the employer’s proffered reason was a

pretext for discrimination.” Delaney v. Bank of Am. Corp.,

(2d Cir.

2014) (internal quotation marks and citations omitted). For ADEA claims, a

plaintiff must prove “that age was the but-for cause of the challenged adverse

employment action and not just a contributing or motivating factor.” Gorzynski,

(internal quotation marks omitted).

Ostrowski’s Title VII claim fails because his allegations do not suggest that

he was discriminated against on the basis of his national origin. Ostrowski’s

ADEA claim fails because, even assuming he can assert a prima facie case of age

discrimination, he cannot prove that his age was the but-for cause of the adverse

employment actions. As the district court explained, the record shows that “for

over a decade prior to filing his EEOC charge, the parties’ employment

relationship was fraught with conflict.” Ostrowski v. Port Auth. of NY & NJ, No. 21-

CV-3328,

, at *3 (E.D.N.Y. Aug. 3, 2023). Ostrowski concedes, for

example, that he was suspended without pay after calling his supervisor a liar.

6 Ostrowski does identify instances that show, he argues, that senior

employees were treated worse than younger employees. He asserts that younger

employees were not disciplined for insulting the supervisor and that there were

three “senior” employees who were “forced out” of employment. Appellant’s Br.

32. However, he does not provide any additional context about the termination of

those employees. These allegations are therefore too vague to establish that age

was the but-for cause of the Port Authority’s actions. See Lively v. WAFRA Inv.

Advisory Grp., Inc.,

, 306 (2d Cir. 2021) (“Although [the plaintiff]

provides the names and positions of several executives who were fired or

otherwise forced out, he offers no details that would support any inference of age

discrimination, such as the executives’ ages or the dates and stated reasons for

their terminations. This vague allegation thus lacks facial plausibility.”).

III

We reject Ostrowski’s assertions that the district judge was biased against

him. His arguments rely on the fact that the district judge ruled against him, but

an adverse ruling does not itself constitute evidence of bias. See Liteky v. United

States,

(1994).

7 * * *

We have considered Ostrowski’s remaining arguments, which we conclude

are without merit. We affirm the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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