15‐1434‐cv
Volat 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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 21st day of March, two thousand sixteen.
PRESENT: RALPH K. WINTER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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ERIC VOLAT,
Plaintiff‐Appellant,
v. 15‐1434‐cv
CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF EDUCATION, ANGELA CAMIOLO,
in her official and individual capacity,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: MICHAEL J. WILLEMIN, David E. Gottlieb,
Wigdor LLP, New York, New York.
FOR DEFENDANTS‐APPELLEES: CECELIA CHANG, Damion K. L. Stodola,
Assistant Corporation Counsel, for Zachary W.
Carter, 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 (Broderick, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the memorandum and order of the district court is
AFFIRMED.
Plaintiff‐appellant Eric Volat appeals an April 17, 2015 memorandum and
order of the United States District Court for the Southern District of New York granting
defendants‐appelleesʹ motion for summary judgment dismissing Volatʹs discrimination
and retaliation claims under the Americans with Disabilities Act (ʺADAʺ), 42 U.S.C.
§§ 12112, 12203, and declining to exercise supplemental jurisdiction over his New York
City Human Rights Law (ʺNYCHRLʺ) claims.1 The district court concluded that Volat
failed to present evidence from which a reasonable trier of fact could find that
defendantsʹ legitimate, nondiscriminatory reason for denying him tenure ‐‐ his
performance ‐‐ was pretext for discrimination or retaliation. We assume the partiesʹ
1
The district court did not enter a separate judgment dismissing the action as
required by Fed. R. Civ. P. 58(a). When a judgment is required to be set out in a separate
document but is not, judgment is deemed entered 150 days after the entry of the dispositive
order. Fed. R. Civ. P. 58(c)(2)(B). Despite the lack of a judgment, this Court has jurisdiction to
hear the appeal of the order, which was a ʺfinal decisionʺ within the meaning of 28 U.S.C.
§ 1291. See Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 66 (2d Cir. 2011) (finding
this Court has jurisdiction to review a ʺfinal decisionʺ ‐‐ ʺone which ends the litigation on the
merits and leaves nothing for the court to do but execute the judgmentʺ (quoting Catlin v. United
States, 324 U.S. 229, 233 (1945))).
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familiarity with the underlying facts, procedural history of the case, and issues on
appeal.
We review the district courtʹs grant of summary judgment de novo, with
the view that ʺ[s]ummary judgment is appropriate when there is ʹno genuine dispute as
to any material factʹ and the moving party is ʹentitled to judgment as a matter of law.ʹʺ
Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Commʹn, 768 F.3d 183, 192
(2d Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). ʺThere is no ʹgenuineʹ dispute when ʹthe
record taken as a whole could not lead a rational trier of fact to find for the non‐moving
party.ʹʺ Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). Upon review, we conclude that the district court correctly granted defendantsʹ
motion for summary judgment and affirm for substantially the reasons stated by the
district court. We add only the following.
First, Volat has identified no evidence in the record that would permit a
jury to find that his disability ‐‐ his HIV positive status ‐‐ was a motivating factor in
Principal Camioloʹs recommendation to deny tenure. Accordingly, his discrimination
claim under the ADA was properly dismissed.
Second, as for his retaliation claim, Volat points to the temporal proximity
between his complaint of discrimination and a number of disciplinary actions and the
effort on the part of Camiolo to create a paper trail. The record, however, contains
indisputable evidence of performance issues arising before Volat made his complaint,
including a matter requiring discipline and issues warranting counseling and support.
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Additionally, many of Volatʹs performance issues were observed by other individuals
who were not named as defendants in this action, including Vice Principal Forschein,
other Department of Education employees, students, and parents. While Volat
contested a number of factual matters, such as precisely what happened during the
water fountain incident, he also admitted that he (1) was struggling with teaching first
grade, (2) challenged Camioloʹs leadership in front of parents at a back to school night
presentation, (3) told a crying first grader that he ʺbetter get up off the floor or
somebodyʹs going to touch your pencil case,ʺ and (4) called his principal a ʺjokeʺ to her
face. J. App. at 256, 289, 437. Taking the record as a whole, we conclude that a
reasonable jury could not have found in favor of Volat on his retaliation claim. See
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (ʺ[P]laintiff must produce not
simply some evidence, but sufficient evidence to support a rational finding that the
legitimate, non‐discriminatory reasons proferred by the defendant were false, and that
more likely than not [retaliation] was the real reason for the employment action.ʺ
(alterations and internal quotation marks omitted)). Accordingly, the district court did
not err by granting summary judgment dismissing this claim.
We have reviewed Volatʹs remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the memorandum and order of the district
court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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