09-0974-cv
Vuong v. New York Life Ins.
UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 12 th day of January, two thousand and ten.
Present: ROBERT D. SACK,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
________________________________________________
PHENG VUONG, also known as FRANK VUONG,
Plaintiff-Appellant,
- v. - (09-0974-cv)
NEW YORK LIFE INSURANCE COMPANY,
Defendant-Appellee.
__________________________________________________
Appearing for Appellant: JANET C. NESCHIS, McLaughlin &
Stern LLP, New York, New York.
Appearing for Appellee: MICHAEL L. BANKS, Morgan, Lewis
& Bockius LLP, Philadelphia,
Pennsylvania.
1
Appeal from the United States District Court for the
Southern District of New York (Griesa, J.).
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the judgment of the United States District
3 Court for the Southern District of New York be AFFIRMED.
4 Plaintiff, Frank Vuong (“Plaintiff” or “Vuong”),
5 appeals from the district court’s February 6, 2009 opinion
6 and order granting summary judgment to Defendant, New York
7 Life Insurance Company (“New York Life”). On February 18,
8 2003, Plaintiff filed a complaint against New York Life, his
9 former employer, raising claims of discrimination and
10 retaliation in violation of Title VII of the Civil Rights
11 Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), 42
12 U.S.C. § 1981 (“§ 1981"), the California Fair Employment and
13 Housing Act, Cal. Gov’t Code § 12900 et seq. (the “FEHA”),
14 and the New York City Human Rights Law, N.Y.C. Admin Code §
15 8-107 et seq. (the “NYCHRL”). We presume the parties’
16 familiarity with the underlying facts, the procedural
17 history of the case, and the issues presented on appeal.
18 As an initial matter, we agree with the district
19 court’s rulings regarding Plaintiff’s time-barred claims.
20 See Vuong v. N.Y. Life Ins. Co., No. 03 Civ. 1075 (TPG),
2
1 2009 WL 306391, at *7-11 (S.D.N.Y. Feb. 6, 2009). The
2 district court also properly concluded that Plaintiff
3 alleged several timely claims. Id. at *11-12. The court
4 found the following claims timely: (1) Plaintiff’s claim
5 under § 1981 concerning Defendant’s decision not to promote
6 him to sole managing partner of the San Francisco General
7 Office (“SFGO”); (2) Plaintiff’s claims under Title VII, §
8 1981 and the FEHA that he was wrongfully terminated from his
9 position as co-manager of the SFGO; (3) Plaintiff’s claim
10 brought pursuant to Title VII that Defendant improperly
11 allocated different percentages of the SFGO’s performance-
12 related compensation to Vuong and his co-manager; (4)
13 Plaintiff’s claim that he was wrongfully denied a promotion
14 as managing partner of another New York Life office, brought
15 pursuant to Title VII, § 1981, and the FEHA; and (5)
16 Plaintiff’s retaliation claims. Id.
17 It is well-known that “[o]n appeal from a decision to
18 grant summary judgment, we review the record de novo to
19 determine whether genuine issues of material fact exist
20 requiring a trial.” Holcomb v. Iona Coll., 521 F.3d 130,
21 137 (2d Cir. 2008). We may affirm the district court’s
3
1 grant of summary judgment “on any ground appearing in the
2 record.” Shumway v. United Parcel Serv., Inc., 118 F.3d 60,
3 63 (2d Cir. 1997).
4 When analyzing a claim of unlawful employment
5 discrimination, we proceed under either the framework set
6 out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798
7 (1973), or under the “mixed-motive” analysis of Price
8 Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989). In this
9 case, the district court analyzed Plaintiff’s claims under
10 the Price Waterhouse burden-shifting framework. Vuong, 2009
11 WL 306391, at *12.
12 Price Waterhouse provides that when a plaintiff comes
13 forward with evidence that a discriminatory factor played a
14 “motivating part” in an adverse employment action, the
15 defendant can “avoid a finding of liability only by proving
16 by a preponderance of the evidence that it would have made
17 the same decision even if it had not taken” improper
18 considerations into account. 490 U.S. at 257. “[D]irect
19 evidence of discrimination is not required in mixed-motive
20 cases,” Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02
21 (2003),” and this Court considers “circumstantial proof
4
1 which, if believed, would show discrimination,” Holcomb, 521
2 F.3d at 137. Of course, Plaintiff “must provide more than
3 conclusory allegations to resist a motion for summary
4 judgment.” Id. In this case, we affirm the grant of
5 summary judgment because Defendant proffered legitimate,
6 nondiscriminatory reasons for its allegedly adverse
7 employment actions, and Plaintiff cannot show that these
8 reasons were pretextual. See McPherson v. N.Y. City Dep’t
9 of Educ., 457 F.3d 211, 215 (2d Cir. 2006).
10 Under the appropriate McDonnell Douglas framework, even
11 granting that Plaintiff established a prima facie
12 discrimination case, there is no issue of material fact to
13 be tried. First, Plaintiff has not provided evidence that
14 calls into question Defendant’s business judgment in
15 electing to appoint co-managers to the SFGO. See Byrnie v.
16 Town of Cromwell, 243 F.3d 93, 105 (2d Cir. 2001). Second,
17 it is undisputed that Plaintiff intentionally failed to
18 perform adequately in his position as co-manager for two
19 years. Under these circumstances, Plaintiff cannot rebut
20 Defendant’s explanations for its decisions not to make him
21 the sole manager of the SFGO, to terminate him as co-manager
5
1 of the SFGO, and not to make him a manager at another New
2 York Life office. See Chambers v. TRM Copy Ctrs. Corp., 43
3 F.3d 29, 38 (2d Cir. 1994).
4 The district court properly concluded that Plaintiff
5 did not produce evidence that discriminatory animus played a
6 role in the allocation of compensation between Plaintiff and
7 his co-manager of the SFGO. Vuong, 2009 WL 306391, at *14.
8 Plaintiff concedes that prior to their promotions, his co-
9 manager earned more than he did. Plaintiff does not
10 attribute a discriminatory motive to this pay differential,
11 which was carried forward when he and his co-manager were
12 promoted.
13 The district court dismissed Plaintiff’s allegations
14 brought pursuant to the NYCHRL, finding the NYCHRL
15 applicable only to discriminatory conduct that occurs within
16 the limits of New York City. Id. The New York Court of
17 Appeals has stated that the “Administrative Code of the City
18 of New York vests in the New York City Commission on Human
19 Rights the authority and jurisdiction to eliminate and
20 prevent discrimination within the City of New York.” Levy
21 v. City Comm’n on Human Rights, 85 N.Y.2d 740, 743 (1995).
6
1 Here, there is no evidence in the record that any
2 discriminatory decisions related to Plaintiff’s employment
3 with Defendant were made in New York City. Therefore,
4 Plaintiff’s NYCHRL claim must fail under existing law. Any
5 arguable ambiguity regarding the meaning of the so-called
6 “impact rule” under New York law created by the per curiam
7 decision of Hoffman v. Parade Publ’ns, 878 N.Y.S.2d 320 (1st
8 Dep’t 2009) does not affect our disposition in this case.
9 The Court has reviewed Plaintiff’s remaining arguments
10 and finds them to be without merit. Accordingly, the
11 judgment of the district court is hereby AFFIRMED.
12
13 For the Court
14 Catherine O’Hagan Wolfe, Clerk
15
16 By: _________________________
7