12-4431-cv
Humphreys v. Cablevision Sys. Corp.
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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of January, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10
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12 JAMES HUMPHREYS,
13
14 Plaintiff-Appellant,
15
16 -v.- No. 12-4431-cv
17
18 CABLEVISION SYSTEMS CORPORATION,
19
20 Defendant-Appellee.
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22
23 FOR PLAINTIFF-APPELLANT: MICHAEL B. SCHULMAN, Michael B.
24 Schulman & Associates, P.C.,
25 Melville, NY.
26
27 FOR DEFENDANT-APPELLEE: RENE M. JOHNSON (Michelle Seldin
28 Silverman, on the brief),
1
1 Morgan, Lewis & Bockius LLP,
2 Princeton, NJ.
3
4 Appeal from a judgment of the United States District
5 Court for the Eastern District of New York (Feuerstein, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 James Humphreys appeals a judgment dismissing his claim
12 against CSC Holdings LLC (“Cablevision”) for sex
13 discrimination in violation of New York State Human Rights
14 Law (“NYHRL”). We assume the parties’ familiarity with the
15 underlying facts, the procedural history, and the issues on
16 appeal.
17 We review de novo a grant of summary judgment, drawing
18 all reasonable inferences in the non-moving party’s favor.
19 See Wrobel v. County of Erie, 692 F.3d 22, 27 (2d Cir.
20 2012). Summary judgment is appropriate if the record shows
21 that “there is no genuine dispute as to any material fact
22 and the movant is entitled to judgment as a matter of law.”
23 Fed. R. Civ. P. 56(a). A genuine dispute of material fact
24 exists only “where the evidence is such that a reasonable
25 jury could decide in the non-movant’s favor.” Beyer v.
26 County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008).
27 “We typically treat Title VII and NYHRL discrimination
28 claims as analytically identical, applying the same standard
29 of proof to both claims.” Salamon v. Our Lady of Victory
2
1 Hosp., 514 F.3d 217, 226 n.9 (2d Cir. 2008). “In a Title
2 VII sex discrimination case . . ., where there is no direct
3 or overt evidence of discriminatory conduct, we apply the
4 three-part burden shifting framework of McDonnell Douglas
5 Corp. v. Green, 411 U.S. 792 (1973), to determine whether
6 summary judgment is appropriate.” Weinstock v. Columbia
7 Univ., 224 F.3d 33, 42 (2d Cir. 2000). “First, the
8 plaintiff must establish a prima facie case of
9 discrimination by showing that: (1) []he is a member of a
10 protected class; (2) []he is qualified for [his] position;
11 (3) []he suffered an adverse employment action; and (4) the
12 circumstances give rise to an inference of discrimination.”
13 Id. “[A] showing that the employer treated plaintiff less
14 favorably than a similarly situated employee outside his
15 protected group . . . is a recognized method of raising an
16 inference of discrimination for purposes of making out a
17 prima facie case.” Mandell v. County of Suffolk, 316 F.3d
18 368, 379 (2d Cir. 2003) (internal quotation marks omitted).
19 However, a plaintiff relying on such “disparate treatment
20 evidence must show []he was similarly situated in all
21 material respects to the individuals with whom []he seeks to
22 compare [him]self.” Id. (internal quotation marks omitted).
23 “Generally speaking, a plaintiff’s burden of
24 establishing a prima facie case in the context of employment
3
1 discrimination law is ‘minimal.’” Collins v. N.Y. City
2 Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002) (quoting
3 McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001)).
4 However, as in Collins, Humphreys “has not met even this low
5 threshold, because the circumstances of his termination do
6 not give rise to or support an inference of discrimination.”
7 Id.
8 Humphreys, a senior manager at a Cablevision facility,
9 does not deny that he flagrantly violated Cablevision’s
10 Harassment Prevention Policy (“Policy”) by showing two of
11 his colleagues a vulgar and offensive internet video.
12 Humphreys’ only response is that one of the two viewers,
13 Dianne Yepes, a human resources employee who later reported
14 his conduct, was equally or more culpable because she did
15 not immediately prevent Humphreys from showing the video,
16 yet was spared termination.
17 On this record, this argument borders on the absurd.
18 To use Yepes as a comparator for a showing of disparate
19 treatment, Humphreys must show that Yepes was “similarly
20 situated,” i.e., “engaged in comparable conduct.” Ruiz v.
21 County of Rockland, 609 F.3d 486, 493-94 (2d Cir. 2010)
22 (internal quotation marks omitted); see also Graham v. Long
23 Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (“[T]he standard
24 for comparing conduct requires a reasonably close
4
1 resemblance of the facts and circumstances of plaintiff’s
2 and comparator’s cases . . . .”). Humphreys introduced the
3 video into the workplace and exhibited it to his co-workers.
4 The Policy specifically prohibits “the distribution of
5 sexually explicit or otherwise abusive or offensive . . .
6 communications.” J.A. 77 (emphasis added). It was
7 Humphreys who distributed the video; at most, Yepes failed
8 to interrupt the video and protect Humphreys from his own
9 poor judgment. The audience members are not similarly
10 situated comparators. Cf. Ruiz, 609 F.3d at 494 (employee
11 who observed and participated in inappropriate behavior
12 could not use as comparator an employee who only observed
13 behavior).
14 Moreover, Humphreys’ two prior incidents involving
15 alleged or proven violations of the Policy distinguish him
16 from persons in the audience. Humphreys was specifically
17 counseled on the Policy after both incidents and was
18 therefore on clear notice that his conduct was
19 inappropriate. His rebuttal--that Yepes breached a separate
20 employee confidentiality provision after the relevant
21 incident--is a non sequitur.
22 Humphreys also relies on the mixed-motive theory of
23 discrimination. Regardless of whether Humphreys presented
24 the theory in district court, he has failed to proffer the
5
1 required evidence of discrimination and this additional
2 theory therefore fails for substantially the same reasons.
3 See de la Cruz v. N.Y. City Human Res. Admin. Dep’t of Soc.
4 Servs., 82 F.3d 16, 23 (2d Cir. 1996) (“In a ‘mixed motives’
5 case, a plaintiff must initially proffer evidence that an
6 impermissible criterion was in fact a ‘motivating’ or
7 ‘substantial’ factor in the employment decision. This
8 burden is greater than the level of proof necessary to make
9 out a McDonnell Douglas prima facie case.” (second emphasis
10 added) (citations omitted)).
11 Humphreys has not raised a genuine dispute of material
12 fact on his sex discrimination claim. The district court
13 properly granted summary judgment to Cablevision.1
14 We have considered all of Humphreys’ remaining
15 arguments and conclude that they are without merit. The
16 judgment of the district court is hereby affirmed.
17
18 FOR THE COURT:
19 CATHERINE O’HAGAN WOLFE, CLERK
20
1
Because we review the record and district court’s
judgment de novo and find no genuine dispute of material
fact, we need not consider whether the district court
ignored new fact statements Humphreys submitted in his
objections to Magistrate Judge Brown’s Report and
Recommendation.
6