17‐1767
Winsome Thelwell v. City of New York, et. al
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
ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 9th day of May, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR.,
DENNIS JACOBS,
Circuit Judges,
MICHAEL P. SHEA,
District Judge.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
WINSOME THELWELL,
Plaintiff‐Appellant,
‐v.‐ 17‐1767
* Judge Michael P. Shea, of the United States District Court for the District of
Connecticut, sitting by designation.
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CITY OF NEW YORK, LAURA EDIDIN, JOHN
DOE, said names being fictitious, the persons
intended being those who aided and abetted the
unlawful conduct of the named Defendants,
JANE DOE, said names being fictitious, the
persons intended being those who aided and
abetted the unlawful conduct of the named
Defendants,
Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: Samuel O. Maduegbuna (William W.
Cowles, Christopher Scharwath
(legal intern), on the brief),
Maduegbuna Cooper, LLP, New
York, NY.
FOR APPELLEES: Daniel Matza‐Brown (Richard
Dearing, Claude S. Platton, on the
brief), Assistant Corporation
Counsel, for Zachary W. Carter,
Corporation Counsel of the City of
New York, New York, NY.
Appeal from an order and judgment of the United States District Court for
the Southern District of New York (Koeltl, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the order and judgment of the district court
be AFFIRMED.
Winsome Thelwell appeals from an order of the United States District
Court for the Southern District of New York (Koeltl, J.), which dismissed on
summary judgment her claims for employment discrimination and failure to
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promote under 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights
Law (“NYSHRL”), N.Y. Exec. L. § 296, et. seq., and the New York City Human
Rights Law (“NYCHRL”), Admin. Code of the City of N.Y., § 8‐107, et. seq., and a
judgment which dismissed her retaliation claim following a jury verdict. We
assume the parties’ familiarity with the underlying facts, the procedural history,
and the issues presented for review.
Summary Judgment
Thelwell, who works for the New York City Civilian Complaint Review
Board (“CCRB”), alleges that she was passed over for promotion to Director of
Investigative Policy (“DIP”) and to Deputy Executive Director of Investigations
(“DEDI”) because she was stereotyped as an “angry black woman.” Pl.’s Am.
Compl. ¶25. She sued the City of New York, one named City employee, and
unnamed aiders and abettors (the “City”). Thelwell contends that the district
court construed all disputed material facts in the City’s favor, and made multiple
errors of law.
We review the grant of summary judgment de novo, drawing all factual
inferences in favor of the non‐moving party. Sousa v. Marquez, 702 F.3d 124, 127
(2d Cir. 2012). Summary judgment is appropriate when “the record taken as a
whole could not lead a rational trier of fact to find for the non‐moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
At the summary judgment stage, failure to promote claims under 42 U.S.C.
§ 1981 and the NYSHRL are subject to the McDonnell Douglas burden‐shifting
analysis. Aulicino v. New York City Depʹt of Homeless Servs., 580 F.3d 73, 80
(2d Cir. 2009). The plaintiff initially bears the burden of establishing a prima
facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the
plaintiff does so, “the burden shifts to the defendant, which is required to offer a
legitimate, non‐discriminatory rationale for its actions.” Terry v. Ashcroft, 336
F.3d 128, 138 (2d Cir. 2003). If the defendant proffers such an explanation, the
burden shifts back. “[T]o defeat summary judgment . . . the plaintiff’s admissible
evidence must show circumstances that would be sufficient to permit a rational
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finder of fact to infer that the defendant’s employment decision was more likely
than not based in whole or in part on discrimination.” Id.
“[C]ourts must analyze NYCHRL claims separately and independently
from any federal and state law claims, construing [its] provisions broadly in favor
of discrimination plaintiffs to the extent that such a construction is reasonably
possible.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109
(2d Cir. 2013) (internal citations and quotation marks omitted). Under the
NYCHRL, “the plaintiff must establish a prima facie case, and the defendant then
has the opportunity to offer legitimate reasons for its actions.” Ya‐Chen Chen v.
City Univ. of New York, 805 F.3d 59, 75–76 (2d Cir. 2015). Thus summary
judgment is appropriate “only if the record establishes as a matter of law that
discrimination play [ed] no role in its actions.” Mihalik, 715 F.3d at 110.
Contrary to Thelwell’s contention that the district court ignored Fed. R. Civ.
P. 56, the district court did not resolve any credibility determinations in favor of
the City. The government offered legitimate non‐discrimnatory reasons for
Denis McCormick’s selection as DIP: he had higher clearance rates, strong
evaluations, and took on extra duties. To avoid summary judgment, Thelwell
had to present evidence demonstrating that the employment decision was more
likely than not caused by racial discrimination. Terry, 336 F.3d at 138. Under
her theory of liability, Thelwell had to demonstrate both discriminatory animus
by defendant Laura Edidin, and that the animus was the proximate cause of Joan
Thompson’s decision to hire McCormick. See Staub v. Proctor Hosp., 562 U.S.
411, 422 (2011). Thelwell is unable to do so for three reasons.
Thelwell argues that Edidin calling her angry is an indication that Edidin
stereotyped her and possessed racial animus. But Thelwell provides nothing but
speculation to demonstrate that Edidin influenced Thompson, while Thompson
testified that Edidin only found out about McCormick’s new position after the
decision had been made to give him the title. On this record, no reasonable juror
could find that Edidin’s supposed animus infected the decision.
No procedural irregularities attended McCormick’s promotion to DIP.
The position was created for McCormick, and McCormick was well‐qualified for
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it. See Mauro v. S. New England Telecommunications, Inc., 208 F.3d 384, 387–88
(2d Cir. 2000) (finding no pretext where job was created for individual who
received the promotion and the individual was “well‐qualified for this type of
work”). Further, Thompson testified that there was no obligation to advertise
the position because it was not an actual promotion, only an additional title, and
that the CCRB had followed the same procedure in the past when creating a
position for a specific individual. Thelwell presented no evidence to contest that
testimony.
Thelwell fails to demonstrate that she was denied the DEDI promotion by
reason of discrimination. “To establish a prima facie case of discriminatory
failure to promote, a plaintiff must allege that she or he applied for a specific
position or positions and was rejected therefrom . . .” Kinsella v. Rumsfeld, 320
F.3d 309, 314 (2d Cir. 2003) (internal quotation marks omitted). Thelwell did not
apply for the DEDI position. While “the rule is that a plaintiffʹs failure to apply
for a position is not a bar to relief when an employerʹs discriminatory practices
deter application or make application a futile endeavor,” Malarkey v. Texaco,
Inc., 983 F.2d 1204, 1213 (2d Cir. 1993), no reasonable person would interpret
Thelwell’s exchanges with Soler‐‐whom Thelwell never accused of racial
animus‐‐to have made application futile. Thelwell offers no more than
speculation that Edidin influenced the decision to select McCormick to DEDI.
Finally, Thelwell argues that McCormick’s experience and qualifications are
subjective factors which suggest pretext, but Thelwell does not dispute the
objective facts of McCormick’s performance.
Therefore summary judgment was proper under both 42 U.S.C. § 1981 and
the NYSHRL. Summary judgment was also proper under the more forgiving
NYCHRL standard, since “the record establishes as a matter of law that
discrimination play[ed] no role in its actions.” Mihalik, 715 F.3d at 110 n.8
(internal citation and quotation marks omitted, alteration in original).
Jury Trial
Thelwell also argues that two evidentiary errors require that the judgment
rejecting her retaliation claim be vacated and the issue re‐tried. “We review a
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district courtʹs evidentiary rulings for abuse of discretion,” Marcic v. Reinauer
Transp. Companies, 397 F.3d 120, 124 (2d Cir. 2005), and “we will not grant a new
trial unless . . . the introduction of inadmissible evidence was . . . so clearly
prejudicial to the outcome of the trial that we are convinced that the jury has
reached a seriously erroneous result or that the verdict is a miscarriage of justice,”
Luciano v. Olsten Corp., 110 F.3d 210, 217 (2d Cir. 1997) (internal citation and
quotation marks omitted). “Prejudice is measured by assessing the error in light
of the record as a whole.” Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1,
17 (2d Cir. 1996).
Thelwell complains that the district court did not permit her to refresh the
recollection of her witness Graham Daw by showing him a complaint he had filed
against the City in a separate suit. According to Thelwell, this error prevented
her from establishing Tracy Catapano‐Fox’s retaliatory animus toward her.
Generally, when a lawyer wishes to use a writing to refresh a witness’
recollection, the lawyer must first establish that the witness lacks present
recollection of the issue. See Bankers Tr. Co. v. Publicker Indus., Inc., 641 F.2d
1361, 1363‐64 (2d Cir. 1981). Daw had no need for his memory to be refreshed.
He clearly and unambiguously testified that nobody at CCRB had told him to stay
away from Thelwell. Daw’s recollection ran contrary to how Thelwell
anticipated he would respond; but that was not grounds to refresh Daw’s
recollection. Further, in her proffer, Thelwell told the district court that she
would not disclose the existence of Daw’s lawsuit to the jury.
Thelwell also argues that the district court abused its discretion by not
permitting the testimony of Richard Emery. We disagree. Thelwell’s reason for
offering Emery’s testimony changed the day before he was set to testify,
prejudicing the City. Thelwell sought to elicit testimony that Catapano‐Fox had
leaked information. But, Catapano‐Fox’s alleged leaking of information had
nothing to do with her credibility and was not inconsistent with her
determination that Thelwell violated CCRB’s policy prohibiting the destruction of
documents. Any probative value in introducing Emery’s testimony on
Catapano‐Fox’s leaking would have been “substantially outweighed by a danger”
of “unfair prejudice, confusing the issues, [and] misleading the jury.” Fed. R.
Evid. 403. Thelwell fails to demonstrate how this ruling so clearly prejudiced her
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so that “a substantial right of a party is affected,” or that the “juryʹs judgment
would be swayed in a material fashion by the error.” Arlio v. Lively, 474 F.3d 46,
51 (2d Cir. 2007).
Accordingly, the order and judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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