18‐1185‐cv
Brown v. Cornell Univ.
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 TO 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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 22nd day of March, two thousand nineteen.
4
5 PRESENT: PIERRE N. LEVAL,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 LEWIS A. KAPLAN,*
9 District Judge.
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11 KEISHA BROWN, IVETTE FRANCIS,
12 TAMMY SMITH,
13
14 Plaintiffs‐Appellants,
15
16 MARLENE AUGUSTINE, LISA CABRERA,
17
18 Plaintiffs, No. 18‐1185‐cv
19
20 v.
* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
1
2 CORNELL UNIVERSITY, WEILL CORNELL
3 MEDICAL COLLEGE, KRISTEN ADAMS,
4 INDIVIDUALLY,
5
6 Defendants‐Appellees.
7 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
8 FOR PLAINTIFFS‐APPELLANTS: MICHAEL CONFUSIONE, Hegge
9 & Confusione, LLC, Mullica
10 Hill, NJ.
11
12 FOR DEFENDANTS‐APPELLEES: BENJAMIN E. STOCKMAN (Brian
13 J. Clark, on the brief), Venable
14 LLP, New York, NY.
15
16
17 Appeal from a judgment of the United States District Court for the
18 Southern District of New York (J. Paul Oetken, Judge).
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
20 AND DECREED that the judgment of the District Court is AFFIRMED.
21 Keisha Brown, Ivette Francis, and Tammy Smith appeal from a judgment
22 of the District Court (Oetken, J.) granting summary judgment to the defendants
23 on the plaintiffs‐appellants’ claims of race discrimination and retaliation in
24 violation of 42 U.S.C. § 1981 and the New York City Human Rights Law. We
25 assume the parties’ familiarity with the underlying facts and the record of prior
2
1 proceedings, to which we refer only as necessary to explain our decision to
2 affirm.
3 After reviewing the entire record, we affirm substantially for reasons
4 stated by the District Court in its opinion and order dated March 26, 2018.2
5 We have considered all the arguments raised by the plaintiffs‐appellants
6 on appeal and conclude that they are without merit. For the foregoing reasons,
7 the judgment of the District Court is AFFIRMED.
8 FOR THE COURT:
9 Catherine O=Hagan Wolfe, Clerk of Court
2 We believe that the District Court erred in excluding the plaintiffs’ evidence of certain
promotions of white employees on the ground that it was “time‐barred.” While it is
true that the promotions would have been time‐barred as “discrete discriminatory acts”
that are actionable, the promotions may nevertheless serve as “evidence in support of a
timely claim.” See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). In
Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d Cir. 2004) (quoting Morgan, 536 U.S. at
113), we similarly explained that “promotion claims may not be based on discrete acts
falling outside the limitations period,” but that “evidence of . . . promotion denials
[occurring at that time] may constitute relevant ‘background evidence in support of a
timely claim.’” The admission of that evidence does not change the outcome in this
case, because the plaintiffs’ claims nonetheless fail for other reasons, such as that the
promoted employees were not similarly situated, as described by the District Court.
3