22-2775-cv Stewart 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 “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 23rd day of October, two thousand twenty-three.
PRESENT: JOHN M. WALKER, JR., STEVEN J. MENASHI, EUNICE C. LEE, Circuit Judges. _____________________________________
Ainsley Stewart, Plaintiff-Appellant, 22-2775 v. City of New York, New York City Transit Authority, Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: Ainsley Stewart, pro se, Brooklyn, NY.
FOR DEFENDANT-APPELLEE: Steven S. Efron, Law Office of Steven S. Efron, New York, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Pamela K. Chen, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Ainsley Stewart, at first through counsel and then pro se, sued
his employer, the New York City Transit Authority (“NYCTA”), under Title VII,
42 U.S.C. § 1981, and state law, alleging racial discrimination and retaliation. The
district court granted summary judgment to the NYCTA on Stewart’s
discrimination claim because Stewart did not establish that he had suffered an
“adverse employment action.” The court also granted summary judgment to the
NYCTA on Stewart’s retaliation claim because he failed to demonstrate that
impermissible retaliation was a “but-for” cause of the alleged adverse
employment action or that the NYCTA or its agents were on notice that Stewart
2 had complained about conduct prohibited by Title VII. We assume the parties’
familiarity with the facts, procedural history, and issues on appeal.
We review a grant of summary judgment de novo, “resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.” Garcia v.
Hartford Police Dep’t, 706 F.3d 120, 126-27 (2d Cir. 2013). “Summary judgment is
proper only when, construing the evidence in the light most favorable to the non-
movant, ‘there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344
(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
I. Disparate Treatment
Title VII and § 1981 claims are evaluated under the three-step burden-
shifting framework set by the Supreme Court in McDonnell Douglas. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Littlejohn v. City of New
York, 795 F.3d 297, 312 (2d Cir. 2015). Under this framework, “[f]irst, the plaintiff
has the burden of proving by the preponderance of the evidence a prima facie
case of discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002)
(quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)).
3 After a plaintiff establishes a prima facie case, the burden shifts to the employer
to articulate a legitimate, non-discriminatory reason for the adverse employment
action. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015);
McDonnell Douglas, 411 U.S. at 802. The burden then shifts back to the plaintiff to
present evidence that the employer’s proffered reason is pretext for an
impermissible motivation. See Vega, 801 F.3d at 83; McDonnell Douglas, 411 U.S.
at 804–05. If the plaintiff cannot establish pretext, the employer is entitled to
summary judgment. James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000).
To make out a prima facie case of discrimination, a plaintiff has the burden
of establishing, inter alia, that he was subjected to an adverse employment action
under circumstances giving rise to an inference of discrimination. See McDonnell
Douglas, 411 U.S. at 802; Vega, 801 F.3d at 83. “A plaintiff sustains an adverse
employment action if he or she endures a materially adverse change in the terms
and conditions of employment.” Vega, 801 F.3d at 85. We agree with the district
court that Stewart did not establish a prima facie case of discrimination because
he offered no evidence from which a reasonable jury could have concluded that
he was subjected to an adverse employment action.
4 There is nothing in the record establishing that Stewart was disciplined
because of racial animus; in fact, there is no evidence that he was ever disciplined
at all. Stewart argues that Superintendent Thomas Mathai and others in
management created an atmosphere in which it was more likely that he would
be disciplined and suffer reputational damage. But criticism, verbal reprimands,
and notices of potential discipline, by themselves, do not qualify as adverse
employment actions. See Fox v. Costco Wholesale Corp., 918 F.3d 65, 72 (2d Cir.
2019) (no adverse employment action where employee was verbally
reprimanded and yelled at by employer because there was no material change in
employment terms or conditions); see also Weeks v. N.Y. State (Div. of Parole), 273
F.3d 76, 86 (2d Cir. 2001) (notice of discipline that had no material effect was not
adverse for disparate treatment and retaliation claims), abrogated on other grounds
by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Moreover, Stewart
offered no evidence that his reputation was damaged. See Scotto v. Almeas, 143
F.3d 105, 114 (2d Cir. 1998) (“The non-moving party [at the summary judgment
stage] may not rely on conclusory allegations or unsubstantiated speculation.”).
Stewart also claims that his involuntary transfer to the Livonia
5 maintenance shop constituted an adverse employment action because it reduced
his opportunities for promotion and overtime. Stewart has offered no evidence
Free access — add to your briefcase to read the full text and ask questions with AI
22-2775-cv Stewart 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 “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 23rd day of October, two thousand twenty-three.
PRESENT: JOHN M. WALKER, JR., STEVEN J. MENASHI, EUNICE C. LEE, Circuit Judges. _____________________________________
Ainsley Stewart, Plaintiff-Appellant, 22-2775 v. City of New York, New York City Transit Authority, Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: Ainsley Stewart, pro se, Brooklyn, NY.
FOR DEFENDANT-APPELLEE: Steven S. Efron, Law Office of Steven S. Efron, New York, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Pamela K. Chen, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Ainsley Stewart, at first through counsel and then pro se, sued
his employer, the New York City Transit Authority (“NYCTA”), under Title VII,
42 U.S.C. § 1981, and state law, alleging racial discrimination and retaliation. The
district court granted summary judgment to the NYCTA on Stewart’s
discrimination claim because Stewart did not establish that he had suffered an
“adverse employment action.” The court also granted summary judgment to the
NYCTA on Stewart’s retaliation claim because he failed to demonstrate that
impermissible retaliation was a “but-for” cause of the alleged adverse
employment action or that the NYCTA or its agents were on notice that Stewart
2 had complained about conduct prohibited by Title VII. We assume the parties’
familiarity with the facts, procedural history, and issues on appeal.
We review a grant of summary judgment de novo, “resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.” Garcia v.
Hartford Police Dep’t, 706 F.3d 120, 126-27 (2d Cir. 2013). “Summary judgment is
proper only when, construing the evidence in the light most favorable to the non-
movant, ‘there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344
(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
I. Disparate Treatment
Title VII and § 1981 claims are evaluated under the three-step burden-
shifting framework set by the Supreme Court in McDonnell Douglas. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Littlejohn v. City of New
York, 795 F.3d 297, 312 (2d Cir. 2015). Under this framework, “[f]irst, the plaintiff
has the burden of proving by the preponderance of the evidence a prima facie
case of discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002)
(quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)).
3 After a plaintiff establishes a prima facie case, the burden shifts to the employer
to articulate a legitimate, non-discriminatory reason for the adverse employment
action. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015);
McDonnell Douglas, 411 U.S. at 802. The burden then shifts back to the plaintiff to
present evidence that the employer’s proffered reason is pretext for an
impermissible motivation. See Vega, 801 F.3d at 83; McDonnell Douglas, 411 U.S.
at 804–05. If the plaintiff cannot establish pretext, the employer is entitled to
summary judgment. James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000).
To make out a prima facie case of discrimination, a plaintiff has the burden
of establishing, inter alia, that he was subjected to an adverse employment action
under circumstances giving rise to an inference of discrimination. See McDonnell
Douglas, 411 U.S. at 802; Vega, 801 F.3d at 83. “A plaintiff sustains an adverse
employment action if he or she endures a materially adverse change in the terms
and conditions of employment.” Vega, 801 F.3d at 85. We agree with the district
court that Stewart did not establish a prima facie case of discrimination because
he offered no evidence from which a reasonable jury could have concluded that
he was subjected to an adverse employment action.
4 There is nothing in the record establishing that Stewart was disciplined
because of racial animus; in fact, there is no evidence that he was ever disciplined
at all. Stewart argues that Superintendent Thomas Mathai and others in
management created an atmosphere in which it was more likely that he would
be disciplined and suffer reputational damage. But criticism, verbal reprimands,
and notices of potential discipline, by themselves, do not qualify as adverse
employment actions. See Fox v. Costco Wholesale Corp., 918 F.3d 65, 72 (2d Cir.
2019) (no adverse employment action where employee was verbally
reprimanded and yelled at by employer because there was no material change in
employment terms or conditions); see also Weeks v. N.Y. State (Div. of Parole), 273
F.3d 76, 86 (2d Cir. 2001) (notice of discipline that had no material effect was not
adverse for disparate treatment and retaliation claims), abrogated on other grounds
by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Moreover, Stewart
offered no evidence that his reputation was damaged. See Scotto v. Almeas, 143
F.3d 105, 114 (2d Cir. 1998) (“The non-moving party [at the summary judgment
stage] may not rely on conclusory allegations or unsubstantiated speculation.”).
Stewart also claims that his involuntary transfer to the Livonia
5 maintenance shop constituted an adverse employment action because it reduced
his opportunities for promotion and overtime. Stewart has offered no evidence
to substantiate his claim that the transfer adversely impacted his employment
conditions. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000)
(granting summary judgment on the grounds that the “[a]ppellant has not
produced evidence to show that the transfer was to an assignment that was
materially less prestigious, materially less suited to his skills and expertise, or
materially less conducive to career advancement”), abrogated on other grounds by
Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010). He likewise offered no evidence
that the transfer was due to racial discrimination. “An inference of
discrimination can arise from circumstances including, but not limited to, the
employer’s criticism of the plaintiff’s performance in ethnically degrading terms;
or its invidious comments about others in the employee’s protected group; or the
more favorable treatment of employees not in the protected group; or the
sequence of events leading to the plaintiff’s discharge.” Littlejohn, 795 F.3d at
312 (internal quotation marks omitted). Stewart offered no evidence that Mathai
ever made racially charged comments about African Americans or disparaged
6 his performance in racial terms. He claims that Mathai treated non-African
American coworkers better than him, but he offers no evidence that he was
similarly situated to these coworkers. See Graham v. Long Island R.R., 230 F.3d 34,
40 (2d Cir. 2000) (“[T]he standard for comparing conduct requires a reasonably
close resemblance of the facts and circumstances of plaintiff’s and comparator’s
cases, rather than a showing that both cases are identical.”).
Because Stewart offered no evidence that he was subjected to an adverse
employment action, let alone an adverse employment action attributable to a
discriminatory motive, he failed to establish a prima facie case of discrimination.
Therefore, the district court properly granted summary judgment to the NYCTA
on this claim.
II. Retaliation
To make out a prima facie case of unlawful retaliation under Title VII, a
plaintiff must show: “(1) participation in a protected activity; (2) that [the
employer] knew of [plaintiff’s] participation in that protected activity; (3) that
[plaintiff] suffered an adverse employment action; and (4) that there exists a
causal relationship between the protected activity and the adverse employment
7 action.” Hicks, 593 F.3d at 166. To succeed on a retaliation claim after a defendant
has established a legitimate, non-discriminatory reason for the adverse action,
the plaintiff must present evidence that retaliation was the “but-for” cause of the
action. Univ. of Tex., Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013); see also Carr
v. New York City Transit Auth., 76 F.4th 172, 178 (2d Cir. 2023) (“[T]he plaintiff
must prove that the desire to retaliate was the but-for cause of the challenged
employment action.”) (quoting Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70
(2d Cir. 2015)).
Stewart did not establish a prima facie case of retaliation because he did
not offer evidence that the NYCTA was aware that he had participated in
protected activity. Stewart’s email to his supervisors of August 4, 2017, which he
claims caused them to reassign him to supervising cleaners and to transfer him
to Livonia in retaliation, did not mention any category protected by Title VII
(race, color, national origin, religion, or sex), much less complain of
discrimination based on any of these categories. (The email did, however,
contain an oblique reference to age discrimination, which is not covered by Title
VII.) While informal complaints, such as an email to management, can constitute
8 protected activity, see Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990),
a plaintiff must show that his employer “understood, or could reasonably have
understood, that the plaintiff’s complaint was directed at conduct prohibited by
Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir.
2011) (alteration omitted) (quoting Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp.,
136 F.3d 276, 292 (2d Cir. 1998)). The NYCTA and its agents would not have
reasonably understood this complaint, which included general allegations that
Mathai was incompetent and dishonest, was directed at conduct prohibited by
Title VII.
Because the August 4 email did not contain language that would have put
NYCTA on notice that Stewart had participated in protected activity, Stewart did
not establish a prima facie case of retaliation. Therefore, the district court
properly granted summary judgment to the NYCTA on this claim.
* * *
We have considered Stewart’s remaining arguments, which we conclude
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court