19-3640
Palencar v. New York Power Authority
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 “SUMMARY ORDER”). A PARTY
CITING TO 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 8th day of December, two thousand twenty.
PRESENT: RICHARD J. SULLIVAN,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.
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STEVEN PALENCAR,
Plaintiff-Appellant,
v. No. 19-3640
NEW YORK POWER AUTHORITY, GIL
QUINIONES, KRISTINE PIZZO, ED WELZ,
PHILIP TOIA, WILLIAM SENIOR, RANI
POLLACK, DIANA BODOLATO,
Defendants-Appellees. *
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FOR PLAINTIFF-APPELLANT: ALLEN A. SHOIKHETBROD, Tully
Rinckey PLLC, Albany, NY.
FOR DEFENDANTS-APPELLEES: JONATHAN B. FELLOWS, Bond,
Schoeneck & King, PLLC, Syracuse,
NY.
Appeal from a judgment of the United States District Court for the Northern
District of New York (David N. Hurd, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Plaintiff-Appellant Steven Palencar appeals from an order of the United
States District Court for the Northern District of New York (Hurd, J.) granting
summary judgment in favor of New York Power Authority (“NYPA”) and seven
individual defendants currently or previously affiliated with NYPA (together,
“Appellees”). As relevant here, Palencar, a former NYPA employee, brought
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq.,
alleging that he suffered unlawful discrimination based on his sexual orientation
* The Clerk of Court is respectfully directed to amend the caption as set forth above.
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and retaliation for engaging in protected activity. On appeal, Palencar argues that
the district court improperly weighed the evidence and made credibility
determinations in granting summary judgment to Appellees despite the existence
of genuine issues of material fact as to his Title VII and NYSHRL claims. 1 We
assume the parties’ familiarity with the underlying facts, procedural history of the
case, and issues on appeal, to which we refer only as necessary to explain our
decision.
We review the district court’s grant of summary judgment de novo,
“construing the evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in [his] favor.” Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013).
I. Discrimination
In evaluating Title VII and NYSHRL discrimination claims where the
plaintiff lacks direct evidence of discriminatory conduct, we apply the familiar
three-step burden shifting framework established in McDonnell Douglas Corp. v.
1The district court also granted summary judgment on Palencar’s retaliation claims
under New York Labor Law § 740 and the Fair Labor Standards Act, but Palencar’s
opening brief fails to preserve those claims. Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.
2001) (explaining that claims are abandoned when presented “in a perfunctory manner,
unaccompanied by some effort at developed argumentation” (internal quotation marks
omitted)).
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Green, 411 U.S. 792 (1973). See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000); Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010).
Under that framework, a plaintiff must first establish a prima facie case of
discrimination, which then shifts the burden to the employer to come forward
with a legitimate, nondiscriminatory reason for the adverse employment action.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If the
employer provides such a justification, the plaintiff must present evidence from
which a reasonable jury could find that the employer’s explanation is a pretext for
intentional discrimination. See id. at 143.
Even if we assume that Palencar established a prima facie case of
discrimination, the record is clear that NYPA proffered legitimate reasons for the
various employment actions Palencar challenges as discriminatory, and that
Palencar failed to adduce sufficient evidence from which a jury could find pretext.
See, e.g., Graves v. Finch Pruyn & Co., 457 F.3d 181, 187–88 (2d Cir. 2006).
At the third step of the McDonnell Douglas framework, our task is to
“examin[e] the entire record,” using a case-specific approach, “to determine
whether the plaintiff could satisfy his ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff.” Schnabel
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v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (internal quotation marks omitted); see
also Zimmermann v. Assocs. First Cap. Corp., 251 F.3d 376, 382 (2d Cir. 2001). To
defeat summary judgment, the plaintiff must produce enough evidence to support
a rational finding not only that the employer’s nondiscriminatory reasons were
false but also “that more likely than not discrimination was the real reason for the”
employment actions. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d
Cir. 1996) (brackets and internal quotation marks omitted)).
The overall record, the entirety of which we do not detail here, shows that
Palencar’s subordinates lodged repeated complaints against him over the course
of several years, that he was consistently combative and defiant toward his
superiors, and that he was unwilling to incorporate constructive feedback in
response to his performance reviews over that time. Even if it could be argued
that Palencar presented some evidence of pretext, the record, taken as a whole,
does not permit a reasonable trier of fact to find that “the most likely alternative
explanation” for his termination was sexual orientation discrimination.
Reeves, 530 U.S. at 147; see James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir.
2000) (explaining that a plaintiff is not guaranteed a trial merely because he can
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satisfy a prima facie case and can adduce “evidence that arguably would allow a
reasonable factfinder to conclude that [the employer’s] explanation . . . is false”).
II. Retaliation
We similarly apply a burden-shifting framework to retaliation claims under
Title VII and the NYSHRL, which prohibit employers from retaliating against
employees because, as relevant here, the employee opposed a discriminatory
practice or brought a discrimination charge against the employer. 42 U.S.C.
§ 2000e–3(a); N.Y. Exec. Law § 296(7). As with discrimination claims, if the
plaintiff establishes a prima facie case of retaliation, the burden shifts to the
employer to offer “a legitimate, non-retaliatory reason for the adverse
employment action.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir.
2015) (internal quotation marks omitted). If the employer articulates such a
reason, “the presumption of retaliation dissipates,” leaving the plaintiff to “prove
that the desire to retaliate was the but-for cause of the challenged employment
action.” Id. (internal quotation marks omitted). He can do so “by demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions in the employer's
proffered legitimate, nonretaliatory reasons for its action.” Kwan v. Andalex Grp.
LLC, 737 F.3d 834, 846 (2d Cir. 2013).
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Palencar claims that he suffered adverse employment actions as retaliation
for bringing his previous settled lawsuit and for making subsequent internal and
external complaints alleging unlawful activity. But, as noted above with respect
to Palencar’s discrimination claims, even if we assume that Palencar has
established a prima facie case of retaliation, there can be no question that NYPA
proffered legitimate, non-retaliatory reasons for disciplining and ultimately
terminating him. Based on the totality of the record, we agree with the district
court that a rational jury could not find that retaliation was the but-for cause of the
actions taken against Palencar.
We have considered the rest of Palencar’s arguments and conclude that they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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