08-5575-cv
Tucker v. New York City
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10 th day of May, two thousand ten.
PRESENT: REENA RAGGI,
PETER W. HALL,
Circuit Judges.*
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FRANKLIN TUCKER,
Plaintiff-Appellant,
v. No. 08-5575-cv
NEW YORK CITY, NEW YORK CITY
DEPARTMENT OF EDUCATION, JOEL KLEIN, in
his official capacity, as an aider and abettor,
Defendants-Appellees.
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APPEARING FOR APPELLANT: PHILIP A. WELLNER (Katherine L. Pringle,
Andrew W. Schilling, on the brief), Friedman
Kaplan Seiler & Adelman LLP, New York, New
York.
*
Judge Rosemary S. Pooler, originally assigned to this panel, did not participate in the
consideration of this appeal. The remaining two members of the panel, who are in
agreement, have determined this matter in accordance with Second Circuit Internal Operating
Procedure E(b).
APPEARING FOR APPELLEES: RONALD E. STERNBERG, Assistant
Corporation Counsel (Leonard Koerner, on the
brief), for Michael A. Cardozo, Corporation
Counsel of the City of New York, New York,
New York.
Appeal from the United States District Court for the Southern District of New York
(Gerard E. Lynch, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on October 1, 2008, is AFFIRMED.
Plaintiff Franklin Tucker,1 an African-American male, appeals from an award of
summary judgment in favor of defendants New York City, the New York City Department
of Education, and Joel Klein, in his official capacity as schools chancellor (collectively, the
“City”), on his claims of race discrimination under 42 U.S.C. § 1981 and Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and First Amendment
retaliation.2 We review an award of summary judgment de novo, and we will affirm only if
the record, viewed in the light most favorable to the nonmoving party, reveals no genuine
issue of material fact. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986); Ollman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d
1
Tucker proceeded pro se in the district court. We appointed pro bono counsel for
this appeal.
2
The district court also entered summary judgment on Tucker’s claims under 42
U.S.C. § 1985, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and New
York State and City Human Rights Laws. Tucker does not challenge these rulings on appeal.
2
Cir. 2008). In doing so, we assume the parties’ familiarity with the facts and record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
1. Race Discrimination Claim
Tucker submits that the district court erred in rejecting as a matter of law his claim of
a discriminatory failure to hire him as the Region 10 drug director. Even assuming that
Tucker raised this claim in the district court, see Turkmen v. Ashcroft, 589 F.3d 542, 549 n.6
(2d Cir. 2009) (noting that issues not raised in district court are deemed waived), we are not
persuaded.
We analyze both Title VII and § 1981 race discrimination claims under the familiar
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987). The City
does not dispute that Tucker made out a prima facie case of race discrimination because he
is a qualified African American who applied for the position ultimately given to a non-
African American. The City contends, however, that it articulated a legitimate,
nondiscriminatory reason for not hiring Tucker and that Tucker failed to adduce evidence of
pretext. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); accord
Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009).
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a. The City Articulated a Legitimate, Non-discriminatory Reason for Its
Decision Not To Hire Tucker
The City submits that Tucker performed poorly during an interview with Victor
Rodriguez, director of student placement, youth, and family support services in that he (1)
“did not demonstrate a leadership style that [Rodriguez] felt would make him successful in
handling . . . multiple responsibilities”; (2) responded to hypothetical questions in a manner
indicating “a non-inclusive leadership style,” suggesting that he would not “approach[]
problems in [a] collaborative style”; (3) “did not embrace any alternative approach to
problem-solving that involved discussion and feedback, nor did he seem to embrace a
leadership style emphasizing consensus building or teamwork”; and (4) “seemed
disinterested in making follow-up visits to . . . counselors in the field or otherwise
participating in on-site program assessments.” Rodriguez Decl. ¶ 8. Further, Rodriguez’s
later discussion with Superintendent Dennis Pradier, under whom Tucker previously served
as an interim-acting drug director, revealed that Tucker was “difficult to work with because
of his abrasive style.” Id. ¶ 10.
On appeal, Tucker submits that these reasons are insufficient to satisfy the City’s
intermediate burden of production because they are subjective. Our precedent is to the
contrary. “There is nothing unlawful about an employer’s basing its hiring decision on
subjective criteria, such as the impression an individual makes during an interview.” Byrnie
v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104 (2d Cir. 2001) (internal quotation
marks and alteration omitted); see also id. at 106 (“An employer is entitled to arrive at a
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subjective evaluation of a candidate’s suitability for a position.”). Moreover, the City’s
desire to hire a drug director with an inclusive and collaborative leadership style is not the
sort of “wholly subjective and unarticulated standard[],” Knight v. Nassau County Civil Serv.
Comm’n, 649 F.2d 157, 161 (2d Cir. 1981), or “vague or conclusory averment[] of good
faith,” Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985), that would not “frame the factual
issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to
demonstrate pretext,” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 255-56; accord
Meiri v. Dacon, 759 F.2d at 997. We, therefore, conclude that the City carried its
intermediate burden of production.3
b. Tucker Did Not Adduce Evidence Showing that the City’s Non-
discriminatory Reason Was Pretextual
Tucker contends that a jury could infer pretext based on his conclusory assertions of
(1) procedural irregularities in the hiring process, and (2) the allegedly inferior qualifications
of Vivian Figueroa, who was ultimately chosen for the drug director position. We are not
persuaded.
3
Byrnie is not to the contrary. There, we acknowledged that evidence showing that
defendants relaxed the degree requirements for a position, failed to comply with a procedure
barring consideration of an application before it was complete, offered implausible
explanations for choosing a less qualified candidate, and subjectively evaluated interview
performance “might not have been sufficient in itself to defeat summary judgment,” but we
concluded that such evidence could support a finding of discrimination because a jury might
draw an adverse inference based on the defendants’ destruction of relevant evidence. Byrnie
v. Town of Cromwell, Bd. of Educ., 243 F.3d at 110-11. By contrast, Tucker has adduced
no evidence raising a genuine issue regarding the City’s credibility.
5
Even assuming that the City departed from a standard protocol of maintaining
interview notes and notifying candidates of their non-selection, that, by itself, would be
insufficient to raise an inference of discrimination in this case. See Weinstock v. Columbia
Univ., 224 F.3d 33, 45 (2d Cir. 2000) (affirming summary judgment on Title VII claim when
alleged procedural irregularities were unrelated to sex, did not affect final employment
decision, and revealed “no evidence of pretext”). Further, the record shows that, like Tucker,
Figueroa previously served as an interim-acting drug director and held the appropriate license
for the position.4 In such circumstances, the difference Tucker alleges in their qualifications
would not support a finding of pretext because the City did not assert that it hired a better
qualified applicant, but rather that it hired a more collaborative one. Cf. Ash v. Tyson Foods,
Inc., 546 U.S. 454, 457 (2006) (noting that plaintiff “might seek to demonstrate that
respondent’s claim to have promoted a better qualified applicant was pretextual by showing
4
Tucker’s appellate argument that this license evidence does not satisfy the business
records exception of Federal Rule of Evidence 803(6) was not raised in the district court, and
thus we deem it waived. See Turkmen v. Ashcroft, 589 F.3d at 549 n.6; see also 10B Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2738,
at 372-73 (3d ed. 1998) (“A party must move to strike an affidavit that violates Rule 56(e).
The failure to do so will result in the waiver of the objection and, in the absence of ‘a gross
miscarriage of justice,’ the court may consider the defective affidavit.” (footnotes omitted)).
In any event, we identify no miscarriage of justice in the district court’s consideration of the
challenged evidence. The City produced copies of Figueroa’s license history accompanied
by a sworn declaration of the director of the Office of Supervisory Services testifying that
her statements were made “based on personal knowledge and a review of the books and
records of the [Department of Education].” Labozzetta Decl. ¶ 4. Thus, Figueroa’s licensing
history was admissible evidence at trial. See Fed. R. Civ. P. 56(e)(1); Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 312-13 (2d Cir. 2008) (holding adequate
foundation for business records exception laid in similar affidavit).
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that []he was in fact better qualified than the person chosen for the position”). Tucker has
adduced no evidence showing that he exhibited the sort of collaborative leadership skills the
City sought for the position.
Accordingly, the district court properly entered summary judgment on Tucker’s race
discrimination claim.
2. First Amendment Retaliation Claim
Tucker also challenges the award of summary judgment on his First Amendment
retaliation claim. To pursue this claim, Tucker had to adduce evidence that: “(1) his speech
was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a
causal connection exists between his speech and the adverse employment determination
against him, so that it can be said that his speech was a motivating factor in the
determination.” Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Upon such a showing,
the burden would shift to defendant to demonstrate “that it would have taken the same
adverse employment action ‘even in the absence of the protected conduct.’” Id. (quoting Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The district court correctly explained in some detail why most of Tucker’s speech was
not constitutionally protected and the deficiencies in his attempt to demonstrate the requisite
causal connection. Tucker contends that a jury could infer a causal connection because the
City’s hiring decision occurred within six or seven months of his protected speech. See
Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d
7
Cir. 2001) (“In this Circuit, a plaintiff can indirectly establish a causal connection to support
a . . . retaliation claim by showing that the protected activity was closely followed in time by
the adverse [employment] action.” (internal quotation marks omitted; alteration in original)).
We need not discuss this argument at length because even if we were to resolve it in Tucker’s
favor, he would not be entitled to relief on appeal because he cannot show that hiring
decisionmakers were aware of his only conceivably protected speech (the letter to
Modzeleski) or that the City’s evidence that it would not have hired Tucker “even in the
absence of the protected conduct,” Morris v. Lindau, 196 F.3d at 110, was a pretext for
retaliation. As noted, the City offered evidence that it chose Figueroa over Tucker because
she had a more collaborative leadership style that he failed to demonstrate in either his job
interview or past employment. Thus, the district court correctly concluded that Tucker’s First
Amendment claim fails for the same reasons that his race discrimination claim fails. See
Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 253 (2d Cir. 2006) (affirming
summary judgment for defendants on First Amendment retaliation claim when,
notwithstanding protected speech, officer selected for promotion “interviewed better” than
officer turned down).
We have considered Tucker’s other arguments on appeal and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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