22-488-cv Davis v. Power Auth. of N.Y.
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.
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 25th day of April, two thousand twenty-three. 4 5 PRESENT: 6 GUIDO CALABRESI, 7 MICHAEL H. PARK, 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 Edward Francis Davis, 13 14 Plaintiff-Appellant, 15 16 v. 22-488 17 18 Power Authority of the State of New York, Guy 19 Sliker, Sangeeta Ranade, Rani Pollack, Kristine 20 Pizzo, Paul Belnick, Justin Driscoll, Nancy 21 Harvey, Gil C. Quiniones, 22 23 Defendants-Appellees. 24 _____________________________________ 25 26 FOR PLAINTIFF-APPELLANT: Edward Francis Davis, pro 27 se, New Windsor, NY. 28 29 FOR DEFENDANTS-APPELLEES: Greg Riolo, Brian A. 30 Bodansky, Jackson Lewis 31 P.C., White Plains, NY. 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Karas, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Edward Davis, proceeding pro se, appeals the district court’s grant of summary judgment
6 to Defendants on his discrimination and retaliation claims. Davis was hired by the Power
7 Authority of the State of New York (“Power Authority”) as a Senior Electrical Engineer in 2009,
8 and he was fired in 2018. Davis alleges that he was fired from his position at the Power Authority
9 because of an underlying medical condition, which required him to take time off under the Family
10 and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). The district court concluded that
11 Defendants provided legitimate reasons for firing him—poor performance, failure to adequately
12 communicate his absences, and misuse of a company credit card—and that Davis failed to show
13 that those reasons were pretextual. See Davis v. Power of Auth. of N.Y., No. 19-CV-792, 2022
14 WL 309200, at *11-14 (S.D.N.Y. Feb. 2, 2022). He appealed. We assume the parties’
15 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
16 “We review de novo a district court’s grant of summary judgment, construing the evidence
17 in the light most favorable to the nonmoving party and drawing all inferences and resolving all
18 ambiguities in favor of that party.” Tompkins v. Metro-N. Commuter R.R. Co., 983 F.3d 74, 78
19 (2d Cir. 2020) (cleaned up). “Summary judgment is proper only when, construing the evidence
20 in the light most favorable to the non-movant, ‘there is no genuine dispute as to any material fact
21 and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334,
22 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We “liberally construe pleadings and briefs
2 1 submitted by pro se litigants . . . to raise the strongest arguments they suggest.” McLeod v. Jewish
2 Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks omitted).
3 I. Discrimination Claims
4 Davis sued for disability discrimination under the Americans with Disabilities Act, 42
5 U.S.C. § 12101 et seq. (“ADA”), the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the New
6 York State Human Rights Law, N.Y. Exec. Law. § 290 et seq. (“NYSHRL”). The McDonnell
7 Douglas burden-shifting framework applies to his claims. See Bey v. City of New York, 999 F.3d
8 157, 165 (2d Cir. 2021) (ADA); Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 n.3 (2d Cir.
9 2006) (NYSHRL); Teahan v. Metro-N. Commuter R.R. Co., 951 F.2d 511, 514 (2d Cir. 1991)
10 (Rehabilitation Act). A plaintiff must “establish a prima facie case of discrimination,” after which
11 “the burden of proof shifts to the defendant to articulate some legitimate, nondiscriminatory reason
12 for the employer’s conduct”; if the defendant does so, “the plaintiff must then demonstrate that the
13 employer’s assigned reason was a pretext or discriminatory in its application.” Fox v. Costco
14 Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (cleaned up).
15 Here, even assuming a prima facie case of discrimination, Defendants provided legitimate,
16 non-discriminatory reasons for Davis’s termination, and Davis fails to show that these reasons are
17 pretextual. To show pretext, Davis must “put forth adequate evidence to support a rational
18 finding that the legitimate non-discriminatory reasons proffered by the employer were false, and
19 that more likely than not the employee’s [disability] was the real reason for the discharge.” See
20 Holt v. KMI-Cont’l, Inc., 95 F.3d 123, 129 (2d Cir. 1996) (explaining the standard in the context
21 of “sex or race” discrimination).
3 1 Defendants argue that Davis was fired for a pattern of poor performance, failure to
2 communicate his absences, and misuse of his company credit card. 1 They point to record
3 evidence of years of increasingly negative performance reviews, a warning letter about Davis’s
4 client communications, warning letters about Davis’s lack of communication with his supervisors,
5 and confirmation that Davis was warned about not using his company credit card for personal use.
6 Defendants also showed that other employees who similarly misused their company credit cards
7 were terminated. Davis, on the other hand, relies on his own characterizations of his work
8 performance and his communication style, as well as his own understanding of how the credit card
9 policy was meant to operate. He also claims that his supervisor complained about his FMLA
10 leave.
11 In the face of the evidence provided by Defendants, Davis’s explanations are insufficient
12 to create a genuine issue of material fact on the core question of pretext. “While we must ensure
13 that employers do not act in a discriminatory fashion, we do not sit as a super-personnel department
14 that reexamines an entity’s business decisions.” Delaney v.
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22-488-cv Davis v. Power Auth. of N.Y.
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.
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 25th day of April, two thousand twenty-three. 4 5 PRESENT: 6 GUIDO CALABRESI, 7 MICHAEL H. PARK, 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 Edward Francis Davis, 13 14 Plaintiff-Appellant, 15 16 v. 22-488 17 18 Power Authority of the State of New York, Guy 19 Sliker, Sangeeta Ranade, Rani Pollack, Kristine 20 Pizzo, Paul Belnick, Justin Driscoll, Nancy 21 Harvey, Gil C. Quiniones, 22 23 Defendants-Appellees. 24 _____________________________________ 25 26 FOR PLAINTIFF-APPELLANT: Edward Francis Davis, pro 27 se, New Windsor, NY. 28 29 FOR DEFENDANTS-APPELLEES: Greg Riolo, Brian A. 30 Bodansky, Jackson Lewis 31 P.C., White Plains, NY. 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Karas, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Edward Davis, proceeding pro se, appeals the district court’s grant of summary judgment
6 to Defendants on his discrimination and retaliation claims. Davis was hired by the Power
7 Authority of the State of New York (“Power Authority”) as a Senior Electrical Engineer in 2009,
8 and he was fired in 2018. Davis alleges that he was fired from his position at the Power Authority
9 because of an underlying medical condition, which required him to take time off under the Family
10 and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). The district court concluded that
11 Defendants provided legitimate reasons for firing him—poor performance, failure to adequately
12 communicate his absences, and misuse of a company credit card—and that Davis failed to show
13 that those reasons were pretextual. See Davis v. Power of Auth. of N.Y., No. 19-CV-792, 2022
14 WL 309200, at *11-14 (S.D.N.Y. Feb. 2, 2022). He appealed. We assume the parties’
15 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
16 “We review de novo a district court’s grant of summary judgment, construing the evidence
17 in the light most favorable to the nonmoving party and drawing all inferences and resolving all
18 ambiguities in favor of that party.” Tompkins v. Metro-N. Commuter R.R. Co., 983 F.3d 74, 78
19 (2d Cir. 2020) (cleaned up). “Summary judgment is proper only when, construing the evidence
20 in the light most favorable to the non-movant, ‘there is no genuine dispute as to any material fact
21 and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334,
22 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We “liberally construe pleadings and briefs
2 1 submitted by pro se litigants . . . to raise the strongest arguments they suggest.” McLeod v. Jewish
2 Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks omitted).
3 I. Discrimination Claims
4 Davis sued for disability discrimination under the Americans with Disabilities Act, 42
5 U.S.C. § 12101 et seq. (“ADA”), the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the New
6 York State Human Rights Law, N.Y. Exec. Law. § 290 et seq. (“NYSHRL”). The McDonnell
7 Douglas burden-shifting framework applies to his claims. See Bey v. City of New York, 999 F.3d
8 157, 165 (2d Cir. 2021) (ADA); Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 n.3 (2d Cir.
9 2006) (NYSHRL); Teahan v. Metro-N. Commuter R.R. Co., 951 F.2d 511, 514 (2d Cir. 1991)
10 (Rehabilitation Act). A plaintiff must “establish a prima facie case of discrimination,” after which
11 “the burden of proof shifts to the defendant to articulate some legitimate, nondiscriminatory reason
12 for the employer’s conduct”; if the defendant does so, “the plaintiff must then demonstrate that the
13 employer’s assigned reason was a pretext or discriminatory in its application.” Fox v. Costco
14 Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (cleaned up).
15 Here, even assuming a prima facie case of discrimination, Defendants provided legitimate,
16 non-discriminatory reasons for Davis’s termination, and Davis fails to show that these reasons are
17 pretextual. To show pretext, Davis must “put forth adequate evidence to support a rational
18 finding that the legitimate non-discriminatory reasons proffered by the employer were false, and
19 that more likely than not the employee’s [disability] was the real reason for the discharge.” See
20 Holt v. KMI-Cont’l, Inc., 95 F.3d 123, 129 (2d Cir. 1996) (explaining the standard in the context
21 of “sex or race” discrimination).
3 1 Defendants argue that Davis was fired for a pattern of poor performance, failure to
2 communicate his absences, and misuse of his company credit card. 1 They point to record
3 evidence of years of increasingly negative performance reviews, a warning letter about Davis’s
4 client communications, warning letters about Davis’s lack of communication with his supervisors,
5 and confirmation that Davis was warned about not using his company credit card for personal use.
6 Defendants also showed that other employees who similarly misused their company credit cards
7 were terminated. Davis, on the other hand, relies on his own characterizations of his work
8 performance and his communication style, as well as his own understanding of how the credit card
9 policy was meant to operate. He also claims that his supervisor complained about his FMLA
10 leave.
11 In the face of the evidence provided by Defendants, Davis’s explanations are insufficient
12 to create a genuine issue of material fact on the core question of pretext. “While we must ensure
13 that employers do not act in a discriminatory fashion, we do not sit as a super-personnel department
14 that reexamines an entity’s business decisions.” Delaney v. Bank of Am. Corp., 766 F.3d 163,
15 169 (2d Cir. 2014) (internal quotation marks omitted). The remarks allegedly expressed by his
16 supervisor about his disability and absences, which Davis could not recall with any specificity,
17 were at most the kind of “stray remarks” that cannot alone, on this record, carry Davis’s burden at
18 summary judgment. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). In any
19 case, the record reflects that the Power Authority continuously approved Davis’s FMLA leave and
1 Although only misuse of his company credit card was cited in the letter terminating Davis, the record indicates that all three issues were considered by the relevant decisionmakers. The written explanation is thus not an inconsistent or varying rationale that would create a genuine issue or inference supporting pretext. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001).
4 1 that Davis was given several warnings and performance reviews by his supervisors indicating how
2 he needed to improve.
3 Thus, Davis has not put forth adequate evidence to support a rational finding that
4 Defendants’ justifications for his firing were pretextual, and the district court properly granted
5 summary judgment dismissing his discrimination claims.
6 II. Retaliation Claims
7 The ADA prohibits retaliation against individuals who allege a violation of the ADA, and
8 the “Rehabilitation Act and [NYSHRL] contain similar provisions against retaliation and are
9 governed in this respect by the same standards as the ADA.” Treglia v. Town of Manlius, 313
10 F.3d 713, 719 (2d Cir. 2002). These types of claims, as well as FMLA retaliation claims, all
11 follow the McDonnell Douglas burden-shifting framework. See id. at 719, 721; Graziadio v.
12 Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir. 2016).
13 For the reasons discussed above, Davis cannot show that the legitimate, non-retaliatory
14 justifications for his termination were pretextual. Defendants produced evidence that Davis’s
15 negative performance reviews and warnings began before he filed his 2014 and 2016 complaints
16 about disability discrimination. And for many years, the Power Authority continuously approved
17 Davis’s FMLA leave despite his performance issues. The district court thus properly granted
18 summary judgment to Defendants on Davis’s retaliation claims. 2
2 We decline to address Davis’s defamation claim and claims against the individual Defendants because he failed to raise them in his opening brief, see Green v. Dep’t of Educ. of N.Y.C., 16 F.4th 1070, 1074 (2d Cir. 2021), along with his argument that he should have been appointed counsel and his whistleblower claim, which he raises for the first time on appeal, see Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003).
5 1 We have considered all of Davis’s remaining arguments and find them to be without merit.
2 We accordingly AFFIRM the judgment of the district court.
3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court