24-688-cv Parker v. Israel Discount Bank of N.Y., Inc.
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 4th day of April, two thousand twenty-five.
PRESENT: GUIDO CALABRESI, SUSAN L. CARNEY, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
MARIAN E. PARKER,
Plaintiff-Appellant,
v. 24-688-cv
ISRAEL DISCOUNT BANK OF NEW YORK, INC., ∗
Defendant-Appellee.
∗ The Clerk of Court is respectfully requested to amend the case caption accordingly. _____________________________________________
FOR PLAINTIFF-APPELLANT: Stephen Bergstein, Bergstein & Ullrich, LLP, New Paltz, NY.
FOR DEFENDANT-APPELLEE: Keith A. Markel, Alana R. Mildner Smolow & Kayla N. West, Morrison Cohen LLP, New York, NY.
Appeal from a February 6, 2024 judgment of the United States District Court for
the Southern District of New York (Valerie E. Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED IN PART and
VACATED IN PART, and the case is REMANDED.
Plaintiff-Appellant Marian E. Parker (“Parker”) challenges the district court’s
grant of summary judgment in favor of Parker’s former employer, Defendant-Appellee
Israel Discount Bank of New York, Inc. (“IDB”). Parker, a technology risk specialist,
brought disability discrimination, retaliation, and failure to accommodate claims under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the New York
State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., and the New York
City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code §§ 8-101 et seq., alleging
that IDB unlawfully terminated her employment during a three-month probationary
period because of limitations arising from an injury she sustained to one of her fingers.
2 On appeal, she challenges the district court’s dismissal of her discrimination claims. 1 We
assume the parties’ familiarity with the underlying facts, the procedural history, and the
issues on appeal, to which we refer only as necessary to explain our decision.
DISCUSSION
We review de novo a district court’s grant of summary judgment. See Banks v. Gen.
Motors, LLC, 81 F.4th 242, 258 (2d Cir. 2023). On a motion for summary judgment, we
“must resolve all ambiguities, and credit all factual inferences that could rationally be
drawn, in favor of the party opposing summary judgment.” Cifra v. G.E. Co., 252 F.3d
205, 216 (2d Cir. 2001). Summary judgment is proper only if no “reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Parker’s ADA claim for discrimination is subject to the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See McMillan v. City of
New York, 711 F.3d 120, 125 (2d. Cir. 2013). Under the McDonnell Douglas framework, the
plaintiff must first “establish a prima facie case of discrimination.” Fox v. Costco Wholesale
Corp., 918 F.3d 65, 71 (2d Cir. 2019). The burden then shifts to the employer to “articulate
some legitimate, nondiscriminatory reason” for their conduct. McDonnell Douglas, 411
1Parker does not appeal the district court’s dismissal of her retaliation and reasonable accommodation claims. Rather, she characterizes IDB’s termination of her as discriminatory “because she had sustained a medical disability and would require reasonable accommodations.” Appellant Br. 14. 3 U.S. at 802. At the third step, the burden shifts back to the plaintiff to show that “the
proffered legitimate reason [is] merely a pretext for discrimination.” Ferraro v. Kellwood
Co., 440 F.3d 96, 100 (2d Cir. 2006) (internal quotation marks omitted).
Assuming, without deciding, that Parker’s injury satisfies the prima facie
requirement for her ADA discrimination claim, we conclude that she fails to carry her
burden at the third step of the McDonnell Douglas framework, which requires her to
demonstrate that IDB’s reasons for terminating her were pretextual. Pretext “may be
demonstrated either by the presentation of additional evidence showing that the
employer’s proffered explanation is unworthy of credence, or by reliance on the evidence
comprising the prima facie case.” Sista v. CDC Ixis N.A., Inc., 445 F.3d 161, 173 (2d Cir.
2006) (internal quotation marks omitted). Here, the record undisputedly shows (1) that
Parker was terminated within the 90-day probationary period for her employment at IDB;
(2) that Parker had a deadline of January 23, 2019, to submit to her supervisor the
Information Security Work Plan (“Work Plan”), a document cataloguing IDB’s
information-security-related action items, and, despite her supervisor’s multiple
requests, she failed to submit the Work Plan until February 1, 2019; and (3) that her
supervisor identified numerous errors in the Work Plan that went to its substance and
accuracy.
4 Parker’s averment by declaration that her supervisor was “angry” with her request
to attend occupational therapy appointments for her injury is insufficient to raise a triable
issue of fact as to pretext. See Hayes v. Dahlke, 976 F.3d 259, 267–68 (2d Cir. 2020)
(explaining that “a mere scintilla of evidence” is insufficient to create a genuine dispute
of fact (internal quotation marks omitted)). Evidence that Parker’s supervisor forwarded
to Human Resources her January 29, 2019 email, which referenced her inability to take
notes at the January 22 meeting, does not support her claim of pretext. The content of the
email displayed Parker’s negative attitude at work, as it addressed her supervisor in an
unmistakably obstinate and uncooperative manner. Further, Parker’s supervisor had
already sent a confidential memorandum to Human Resources recommending her
termination. The record establishes that, prior to this email exchange, Parker’s supervisor
intended to terminate Parker based on her work performance, not her injury or disability.
Although Parker was terminated on February 4, 2019, the same day that she requested a
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24-688-cv Parker v. Israel Discount Bank of N.Y., Inc.
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 4th day of April, two thousand twenty-five.
PRESENT: GUIDO CALABRESI, SUSAN L. CARNEY, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
MARIAN E. PARKER,
Plaintiff-Appellant,
v. 24-688-cv
ISRAEL DISCOUNT BANK OF NEW YORK, INC., ∗
Defendant-Appellee.
∗ The Clerk of Court is respectfully requested to amend the case caption accordingly. _____________________________________________
FOR PLAINTIFF-APPELLANT: Stephen Bergstein, Bergstein & Ullrich, LLP, New Paltz, NY.
FOR DEFENDANT-APPELLEE: Keith A. Markel, Alana R. Mildner Smolow & Kayla N. West, Morrison Cohen LLP, New York, NY.
Appeal from a February 6, 2024 judgment of the United States District Court for
the Southern District of New York (Valerie E. Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED IN PART and
VACATED IN PART, and the case is REMANDED.
Plaintiff-Appellant Marian E. Parker (“Parker”) challenges the district court’s
grant of summary judgment in favor of Parker’s former employer, Defendant-Appellee
Israel Discount Bank of New York, Inc. (“IDB”). Parker, a technology risk specialist,
brought disability discrimination, retaliation, and failure to accommodate claims under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the New York
State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., and the New York
City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code §§ 8-101 et seq., alleging
that IDB unlawfully terminated her employment during a three-month probationary
period because of limitations arising from an injury she sustained to one of her fingers.
2 On appeal, she challenges the district court’s dismissal of her discrimination claims. 1 We
assume the parties’ familiarity with the underlying facts, the procedural history, and the
issues on appeal, to which we refer only as necessary to explain our decision.
DISCUSSION
We review de novo a district court’s grant of summary judgment. See Banks v. Gen.
Motors, LLC, 81 F.4th 242, 258 (2d Cir. 2023). On a motion for summary judgment, we
“must resolve all ambiguities, and credit all factual inferences that could rationally be
drawn, in favor of the party opposing summary judgment.” Cifra v. G.E. Co., 252 F.3d
205, 216 (2d Cir. 2001). Summary judgment is proper only if no “reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Parker’s ADA claim for discrimination is subject to the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See McMillan v. City of
New York, 711 F.3d 120, 125 (2d. Cir. 2013). Under the McDonnell Douglas framework, the
plaintiff must first “establish a prima facie case of discrimination.” Fox v. Costco Wholesale
Corp., 918 F.3d 65, 71 (2d Cir. 2019). The burden then shifts to the employer to “articulate
some legitimate, nondiscriminatory reason” for their conduct. McDonnell Douglas, 411
1Parker does not appeal the district court’s dismissal of her retaliation and reasonable accommodation claims. Rather, she characterizes IDB’s termination of her as discriminatory “because she had sustained a medical disability and would require reasonable accommodations.” Appellant Br. 14. 3 U.S. at 802. At the third step, the burden shifts back to the plaintiff to show that “the
proffered legitimate reason [is] merely a pretext for discrimination.” Ferraro v. Kellwood
Co., 440 F.3d 96, 100 (2d Cir. 2006) (internal quotation marks omitted).
Assuming, without deciding, that Parker’s injury satisfies the prima facie
requirement for her ADA discrimination claim, we conclude that she fails to carry her
burden at the third step of the McDonnell Douglas framework, which requires her to
demonstrate that IDB’s reasons for terminating her were pretextual. Pretext “may be
demonstrated either by the presentation of additional evidence showing that the
employer’s proffered explanation is unworthy of credence, or by reliance on the evidence
comprising the prima facie case.” Sista v. CDC Ixis N.A., Inc., 445 F.3d 161, 173 (2d Cir.
2006) (internal quotation marks omitted). Here, the record undisputedly shows (1) that
Parker was terminated within the 90-day probationary period for her employment at IDB;
(2) that Parker had a deadline of January 23, 2019, to submit to her supervisor the
Information Security Work Plan (“Work Plan”), a document cataloguing IDB’s
information-security-related action items, and, despite her supervisor’s multiple
requests, she failed to submit the Work Plan until February 1, 2019; and (3) that her
supervisor identified numerous errors in the Work Plan that went to its substance and
accuracy.
4 Parker’s averment by declaration that her supervisor was “angry” with her request
to attend occupational therapy appointments for her injury is insufficient to raise a triable
issue of fact as to pretext. See Hayes v. Dahlke, 976 F.3d 259, 267–68 (2d Cir. 2020)
(explaining that “a mere scintilla of evidence” is insufficient to create a genuine dispute
of fact (internal quotation marks omitted)). Evidence that Parker’s supervisor forwarded
to Human Resources her January 29, 2019 email, which referenced her inability to take
notes at the January 22 meeting, does not support her claim of pretext. The content of the
email displayed Parker’s negative attitude at work, as it addressed her supervisor in an
unmistakably obstinate and uncooperative manner. Further, Parker’s supervisor had
already sent a confidential memorandum to Human Resources recommending her
termination. The record establishes that, prior to this email exchange, Parker’s supervisor
intended to terminate Parker based on her work performance, not her injury or disability.
Although Parker was terminated on February 4, 2019, the same day that she requested a
medical accommodation form from Human Resources, the record establishes that as early
as February 1, Parker’s supervisor notified Human Resources that he intended to
terminate her on February 4. That sequence of events precludes a finding that her request
for the form caused her termination. Because Parker has not met her burden of showing
that IDB’s reasons for her termination were pretextual, the district court’s dismissal of
her ADA discrimination claim was proper.
5 Because we affirm the dismissal of Parker’s only remaining federal claim, we
decline to exercise jurisdiction over her appeal of the district court’s dismissal of her
NYSHRL and NYCHRL discrimination claims. See Sherwood 48 Assocs. v. Sony Corp. of
Am., 76 F. App'x 389, 391–92 (2d Cir. 2003) (summary order); Burns v. City of Utica, 590 F.
App'x 44, 51 (2d Cir. 2014) (summary order). Accordingly, Parker’s NYSHRL and
NYCHRL discrimination claims are dismissed without prejudice to her pursuing them in
state court.
* * *
For the foregoing reasons, we AFFIRM the judgment of the district court insofar
as it dismissed the federal ADA claim; VACATE the portion of the judgment that
dismissed the state and NYCHRL claims; and REMAND the case to the district court for
entry of a judgment dismissing the state and city claims without prejudice.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court