Testagrose v. New York City Housing Authority

09-2007-cv Testagrose v. NYC Housing Authority 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 SUMMARY ORDER 5 6 RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 7 SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED 8 BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 9 W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY 10 M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE 11 NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY 12 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 13 14 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 15 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 16 on the 11th day of March, two thousand ten. 17 18 Present: JOSEPH M. McLAUGHLIN, 19 Circuit Judge, 20 KIMBA M. WOOD,* 21 District Judge.** 22 23 24 _____________________________________________________ 25 26 HELEN TESTAGROSE, 27 28 Plaintiff-Appellant, 29 30 -v- (09-2007-cv) 31 32 NEW YORK CITY HOUSING AUTHORITY, 33 34 Defendant-Appellee. 35 36 37 Appearing for Appellant: Ambrose Wotorson, Law Office of Ambrose Wotorson, Brooklyn, 38 N.Y. * The Honorable Kimba M. Wood, United States District Court for the Southern District of New York, sitting by designation. ** The Honorable Rosemary S. Pooler, originally a member of the panel, did not participate in consideration of this appeal. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). 1 Appearing for Appellee: Donna Murphy (Sonya Kaloyanides, on the brief), New York City 2 Housing Authority, New York, N.Y. 3 4 Appeal from the United States District Court for the Eastern District of New York 5 (Mauskopf, Judge.). 6 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 7 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 8 Plaintiff-appellant appeals a March 31, 2009, memorandum and order of the district court 9 granting defendant’s motion for summary judgment and dismissing plaintiff’s claims in their 10 entirety. Plaintiff alleges that she was terminated from her position as a caretaker for the New 11 York City Housing Authority (“NYCHA”) in violation of the Equal Protection Clause and 42 12 U.S.C. § 1983. Specifically, she alleges that she was disciplined more harshly than other 13 similarly situated male caretakers. This claim is evaluated under the same rubric as gender 14 discrimination claims brought under Title VII. See Back v. Hastings on Hudson Union Free Sch. 15 Dist., 365 F.3d 107, 123 (2d Cir. 2004). We assume the parties’ familiarity with the underlying 16 facts and procedural history. 17 The district court concluded that Testagrose had failed to present any evidence suggesting 18 that her termination was the result of discriminatory animus and thus that she had not established 19 a prima facie case of gender discrimination. We agree. To show discriminatory animus, 20 Testagrose primarily relied on evidence that other similarly situated male employees were treated 21 more favorably. However, these comparators were not similarly situated. The NYCHA 22 terminated Testagrose after she was arrested for weapons possession, drug possession, and 23 criminal mischief. The individuals Testagrose identifies as comparators either were not arrested 24 or were arrested for less serious offenses. Additionally, in the two cases involving arrests, one 25 comparator resigned before the disciplinary hearing, and the other pled guilty and accepted a 2 1 suspension. In contrast, Testagrose did not offer to plead guilty or resign. Thus, none of the 2 comparators was similarly situated to Testagrose “in all material respects.” See Shumway v. 3 United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Moreover, all of the comparators 4 were, like Testagrose, brought up on disciplinary charges. In other words, they were treated 5 exactly the same as Testagrose. Therefore, having produced no evidence of discrimination, 6 Testagrose failed to establish a prima facie claim of gender discrimination. See Back, 365 F.3d at 7 123. 8 Finally, the decision to terminate Testagrose was based on the recommendation of a Trial 9 Officer, a neutral decision maker whom Testagrose does not accuse of discrimination. We have 10 held that “[w]here an employee’s ultimate termination depends upon, and is allowed by, a 11 decision of an independent and unbiased arbitrator based on substantial evidence after a fair 12 hearing, the arbitration decision has probative weight regarding the requisite causal link between 13 an employee’s termination and the employer’s illegal motive.” Collins v. N.Y.C. Transit 14 Authority, 305 F.3d 113, 115 (2d Cir. 2002). There is no evidence to suggest that the Trial 15 Officer in this case was biased or that Testagrose did not receive a fair hearing. 16 We have considered Testagrose’s other arguments and find them without merit. 17 Accordingly, the judgment of the district court hereby is AFFIRMED. 18 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 23 3