20-3092 Bourara v. N.Y. Hotel Trades Council & Hotel Ass’n of N.Y.C., Inc., Emp. Benefit Funds
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 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 City of 3 New York, on the 19th day of October, two thousand twenty-one. 4 5 PRESENT: 6 PIERRE N. LEVAL, 7 ROBERT D. SACK, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 MUSTAPHA BOURARA, M.D., 13 14 Plaintiff-Appellant, 15 16 v. 20-3092 17 18 THE NEW YORK HOTEL TRADES COUNCIL 19 AND HOTEL ASSOCIATION OF NEW YORK 20 CITY, INC., EMPLOYEE BENEFIT FUNDS, 21 22 Defendant-Appellee. 23 _____________________________________ 24 25 FOR PLAINTIFF-APPELLANT: ROBERT A. DAVITCH, Sidkoff Pincus & 26 Green, P.C., Philadelphia, PA (Sidney L. 27 Gold, Sidney L. Gold & Assoc., P.C., 28 Philadelphia, PA, on the brief). 29 30 FOR DEFENDANT-APPELLEE: JENNIFER M. SCHMALZ, Ellenoff Grossman 31 & Schole, LLP, New York, NY. 32 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Freeman, M.J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Defendant-Appellee, the New York Hotel Trades Council and Hotel Association of
6 New York City, Inc., Employee Benefit Funds, employed Plaintiff-Appellant, Dr. Mustapha
7 Bourara, as a part-time Obstetrics and Gynecology doctor at the Queens Health Center (“QHC”).
8 On May 12, 2015, Bourara suffered various injuries from a slip-and-fall accident while he was
9 working at another hospital. As a result, he took several weeks of short-term disability leave.
10 Bourara testified that even after returning to work at the QHC, he had difficulty performing his
11 job due to his disability.
12 On July 9, 2015, Bourara attended two separate doctor’s appointments for his own
13 medical needs during his shift. The following day, Bourara’s supervisor, Dr. Doreen Sweeting,
14 sent an email to Defendant’s Chief Medical Officer, Dr. Vincent Jarvis, recommending
15 Bourara’s termination (“July 10 Email”). Defendant terminated Bourara on August 10, 2015
16 when Jarvis signed a termination memorandum prepared by Sweeting (“August 10 Memo”).
17 Bourara brought this action claiming disability discrimination under the Americans with
18 Disabilities Act (“ADA”), the New York State Human Rights Law (“NYSHRL”), and the New
19 York City Human Rights Law (“NYCHRL”). The district court granted summary judgment to
20 Defendant, and Bourara timely appealed. We assume the parties’ familiarity with the underlying
21 facts, procedural history, and issues on appeal.
22 Discrimination claims under the ADA, NYSHRL, and NYCHRL are governed by the
23 burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
2 1 04 (1973). See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (ADA); Spiegel
2 v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010) (NYSHRL and NYCHRL). “A plaintiff must
3 establish a prima facie case; the employer must offer through the introduction of admissible
4 evidence a legitimate non-discriminatory reason for the discharge; and the plaintiff must then
5 produce evidence and carry the burden of persuasion that the proffered reason is a pretext” for
6 discrimination. Sista, 445 F.3d at 169. Under the ADA, a plaintiff must show that
7 discrimination was the but-for cause of the adverse action taken against him. See Natofsky v.
8 City of New York, 921 F.3d 337, 348 (2d Cir. 2019). We have applied the but-for standard in
9 NYSHRL cases and suggested that a plaintiff may prevail in a NYCHRL case if discrimination
10 was a partial motivating factor. See Russell v. Aid to Developmentally Disabled, Inc., 753
11 F. App’x 9, 14 (2d Cir. 2018); Forrester v. Corizon Health, Inc., 752 F. App’x 64, 66 (2d Cir.
12 2018).
13 Even assuming that Bourara met his prima facie burden, we affirm the district court’s
14 conclusion that Defendant articulated a legitimate and non-discriminatory reason for terminating
15 Bourara—i.e., theft of time. In order to survive summary judgment, Bourara was required to
16 provide evidence that the proffered reason for his termination was pretext for discrimination, and
17 that his disability was a but-for cause of his termination (or, on the NYCHRL claim, at least a
18 motivating factor). He failed to do so. Bourara first argues that there is a genuine factual dispute
19 about whether patients were waiting for him to return from his second medical appointment on
20 July 9. He asserts that this is material because Sweeting, in the July 10 Email and August 10
21 Memo, said that “above all else,” the reason for Bourara’s termination was the inconvenience he
22 caused for the patients.
3 1 As the district court found, notwithstanding the “above all else” language in the July 10
2 Email and August 10 Memo, the articulated reason for termination was “theft of time.”
3 Specifically, Bourara’s decision to attend personal doctor’s appointments during his shift was the
4 reason consistently given by Defendant for his termination. The factual dispute Bourara
5 highlights does not render the stated reason pretextual—even if no patients were waiting, as
6 Bourara claims, Defendant could legitimately have terminated him because attending personal
7 appointments during his shift still constituted theft of time.
8 Bourara’s second argument is that Defendant gave shifting and inconsistent explanations
9 for his termination, which can be evidence that the employer’s proffered reason is pretext for
10 discrimination. See, e.g., Kwan v. Andalex Grp., LLC, 737 F.3d 834, 846 (2d Cir. 2013).
11 Undermining Bourara’s argument, however, is the fact that at all relevant times, Defendant’s
12 reason for terminating Bourara was based on his decision to attend medical appointments during
13 his shift on July 9. Although Defendant did not label the conduct as “theft of time” until
14 litigation, the July 10 Email and August 10 Memo described the same conduct as the underlying
15 reason for termination.
16 Third, Bourara argues that the additional allegations of misconduct that Sweeting added
17 to the August 10 Memo, which she had not included in the July 10 Email, were false and
18 reflected discriminatory motive. We conclude that the incidents Bourara disputes are not
19 material to the case and that their addition to the August 10 Memo did not reflect discriminatory
20 motive by Sweeting.
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20-3092 Bourara v. N.Y. Hotel Trades Council & Hotel Ass’n of N.Y.C., Inc., Emp. Benefit Funds
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 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 City of 3 New York, on the 19th day of October, two thousand twenty-one. 4 5 PRESENT: 6 PIERRE N. LEVAL, 7 ROBERT D. SACK, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 MUSTAPHA BOURARA, M.D., 13 14 Plaintiff-Appellant, 15 16 v. 20-3092 17 18 THE NEW YORK HOTEL TRADES COUNCIL 19 AND HOTEL ASSOCIATION OF NEW YORK 20 CITY, INC., EMPLOYEE BENEFIT FUNDS, 21 22 Defendant-Appellee. 23 _____________________________________ 24 25 FOR PLAINTIFF-APPELLANT: ROBERT A. DAVITCH, Sidkoff Pincus & 26 Green, P.C., Philadelphia, PA (Sidney L. 27 Gold, Sidney L. Gold & Assoc., P.C., 28 Philadelphia, PA, on the brief). 29 30 FOR DEFENDANT-APPELLEE: JENNIFER M. SCHMALZ, Ellenoff Grossman 31 & Schole, LLP, New York, NY. 32 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Freeman, M.J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Defendant-Appellee, the New York Hotel Trades Council and Hotel Association of
6 New York City, Inc., Employee Benefit Funds, employed Plaintiff-Appellant, Dr. Mustapha
7 Bourara, as a part-time Obstetrics and Gynecology doctor at the Queens Health Center (“QHC”).
8 On May 12, 2015, Bourara suffered various injuries from a slip-and-fall accident while he was
9 working at another hospital. As a result, he took several weeks of short-term disability leave.
10 Bourara testified that even after returning to work at the QHC, he had difficulty performing his
11 job due to his disability.
12 On July 9, 2015, Bourara attended two separate doctor’s appointments for his own
13 medical needs during his shift. The following day, Bourara’s supervisor, Dr. Doreen Sweeting,
14 sent an email to Defendant’s Chief Medical Officer, Dr. Vincent Jarvis, recommending
15 Bourara’s termination (“July 10 Email”). Defendant terminated Bourara on August 10, 2015
16 when Jarvis signed a termination memorandum prepared by Sweeting (“August 10 Memo”).
17 Bourara brought this action claiming disability discrimination under the Americans with
18 Disabilities Act (“ADA”), the New York State Human Rights Law (“NYSHRL”), and the New
19 York City Human Rights Law (“NYCHRL”). The district court granted summary judgment to
20 Defendant, and Bourara timely appealed. We assume the parties’ familiarity with the underlying
21 facts, procedural history, and issues on appeal.
22 Discrimination claims under the ADA, NYSHRL, and NYCHRL are governed by the
23 burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
2 1 04 (1973). See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (ADA); Spiegel
2 v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010) (NYSHRL and NYCHRL). “A plaintiff must
3 establish a prima facie case; the employer must offer through the introduction of admissible
4 evidence a legitimate non-discriminatory reason for the discharge; and the plaintiff must then
5 produce evidence and carry the burden of persuasion that the proffered reason is a pretext” for
6 discrimination. Sista, 445 F.3d at 169. Under the ADA, a plaintiff must show that
7 discrimination was the but-for cause of the adverse action taken against him. See Natofsky v.
8 City of New York, 921 F.3d 337, 348 (2d Cir. 2019). We have applied the but-for standard in
9 NYSHRL cases and suggested that a plaintiff may prevail in a NYCHRL case if discrimination
10 was a partial motivating factor. See Russell v. Aid to Developmentally Disabled, Inc., 753
11 F. App’x 9, 14 (2d Cir. 2018); Forrester v. Corizon Health, Inc., 752 F. App’x 64, 66 (2d Cir.
12 2018).
13 Even assuming that Bourara met his prima facie burden, we affirm the district court’s
14 conclusion that Defendant articulated a legitimate and non-discriminatory reason for terminating
15 Bourara—i.e., theft of time. In order to survive summary judgment, Bourara was required to
16 provide evidence that the proffered reason for his termination was pretext for discrimination, and
17 that his disability was a but-for cause of his termination (or, on the NYCHRL claim, at least a
18 motivating factor). He failed to do so. Bourara first argues that there is a genuine factual dispute
19 about whether patients were waiting for him to return from his second medical appointment on
20 July 9. He asserts that this is material because Sweeting, in the July 10 Email and August 10
21 Memo, said that “above all else,” the reason for Bourara’s termination was the inconvenience he
22 caused for the patients.
3 1 As the district court found, notwithstanding the “above all else” language in the July 10
2 Email and August 10 Memo, the articulated reason for termination was “theft of time.”
3 Specifically, Bourara’s decision to attend personal doctor’s appointments during his shift was the
4 reason consistently given by Defendant for his termination. The factual dispute Bourara
5 highlights does not render the stated reason pretextual—even if no patients were waiting, as
6 Bourara claims, Defendant could legitimately have terminated him because attending personal
7 appointments during his shift still constituted theft of time.
8 Bourara’s second argument is that Defendant gave shifting and inconsistent explanations
9 for his termination, which can be evidence that the employer’s proffered reason is pretext for
10 discrimination. See, e.g., Kwan v. Andalex Grp., LLC, 737 F.3d 834, 846 (2d Cir. 2013).
11 Undermining Bourara’s argument, however, is the fact that at all relevant times, Defendant’s
12 reason for terminating Bourara was based on his decision to attend medical appointments during
13 his shift on July 9. Although Defendant did not label the conduct as “theft of time” until
14 litigation, the July 10 Email and August 10 Memo described the same conduct as the underlying
15 reason for termination.
16 Third, Bourara argues that the additional allegations of misconduct that Sweeting added
17 to the August 10 Memo, which she had not included in the July 10 Email, were false and
18 reflected discriminatory motive. We conclude that the incidents Bourara disputes are not
19 material to the case and that their addition to the August 10 Memo did not reflect discriminatory
20 motive by Sweeting.
21 Fourth, Bourara argues that Defendant deviated from its own employee-discipline policy,
22 which raises an inference that the employer’s reason was a pretext for discrimination. But
23 Bourara’s disagreement with Defendant’s decision to treat his actions as a major infraction rather
4 1 than a minor one does not transform that judgment call into a policy deviation, much less
2 evidence of pretext for discrimination. We do not “sit as a super-personnel department that
3 reexamines employer’s judgments.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 73 (2d
4 Cir. 2015) (internal citation and quotation marks omitted).
5 Finally, Bourara relies on the temporal proximity between when his supervisor became
6 aware of his disability and when she recommended his termination as evidence of pretext for
7 discrimination. Even assuming this six-week period could be evidence of pretext for
8 discrimination, Bourara’s misconduct—attending personal medical appointments during his
9 shift—occurred the day before his supervisor recommended his termination, undermining his
10 argument. Moreover, “[t]he temporal proximity of events may give rise to an inference of
11 [discrimination] for the purposes of establishing a prima facie case of [discrimination] under [the
12 ADA], but without more, such temporal proximity is insufficient to satisfy appellant’s burden to
13 bring forward some evidence of pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933
14 (2d Cir. 2010).
15 Bourara provided little if any other evidence demonstrating discriminatory motive, so we
16 affirm the district court’s conclusion that Bourara failed to demonstrate that the employer’s
17 reason for his termination was a pretext for discrimination or that his disability was a but-for
18 cause of his termination.
19 We have considered the remainder of Bourara’s arguments and find them to be without
20 merit. For the foregoing reasons, we affirm the judgment of the district court.
21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk of Court