20-741-cv
Kunik v. N.Y.C. Dep't of Educ.
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 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 15th day of January, two thousand twenty-one.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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RIMMA KUNIK,
Plaintiff-Appellant,
v. 20-741-cv
NEW YORK CITY DEPARTMENT OF EDUCATION,
PRINCIPAL KAYE HOULIHAN,
ASSISTANT PRINCIPAL DORISH MUNOZ FUENTES,
Defendants-Appellees. *
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* The Clerk of Court is respectfully directed to amend the official caption as set forth above.
FOR PLAINTIFF-APPELLANT: Rimma Kunik, pro se, Pearl River, New York.
FOR DEFENDANTS-APPELLEES: Elizabeth I. Freeman, Jeremy W. Shweder, for
James E. Johnson, Corporation Counsel of the
City of New York, New York, New York.
Appeal from the United States District Court for the Southern District of
New York (Broderick, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court entered on
January 31, 2020, is AFFIRMED.
Plaintiff-appellant Rimma Kunik, a retired high school teacher proceeding
pro se, appeals from the district court's dismissal of her claims of employment
discrimination and retaliation brought against defendants-appellees New York City
Department of Education ("DOE"), Kaye Houlihan, and Dorish Munoz Fuentes
(collectively, "defendants") pursuant to 42 U.S.C. § 1983 and state law. Kunik
specifically challenged the district court's (1) September 29, 2017 dismissal of certain
claims for failure to state a claim or as time-barred, and (2) January 31, 2020 award of
summary judgment to defendants on her remaining claims. We assume the parties'
familiarity with the underlying facts, the procedural history of the case, and the issues
on appeal.
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I. Certain Claims Are Waived
We "liberally construe pleadings and briefs submitted by pro se litigants,
reading such submissions to raise the strongest arguments they suggest." McLeod v.
Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks
omitted). Despite affording pro se litigants "some latitude in meeting the rules
governing litigation," we "normally will not[ ] decide issues that a party fails to raise in
his or her appellate brief." Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998); see also
Terry v. Inc. Village of Patchogue, 826 F.3d 631, 632–33 (2d Cir. 2016) ("Although we
accord filings from pro se litigants a high degree of solicitude, even a litigant
representing [herself] is obliged to set out identifiable arguments in [her] principal
brief." (internal quotation marks omitted)).
Kunik has waived any challenge to the district court's dismissal of her
retaliation, procedural due process, New York State Human Rights Law ("NYSHRL"),
and New York City Human Rights Law ("NYCHRL") claims by not raising any
arguments concerning these claims in her principal brief to this Court. Her inquiry
about the NYSHRL and NYCHRL claims in her reply brief, even if construed as an
argument challenging dismissal, is insufficient to preserve those claims for appeal
because we generally do not consider arguments raised for the first time in a reply brief,
and nothing in the record before us warrants a departure from that rule. See JP Morgan
Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005). Kunik
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has also waived her claims against DOE by not challenging the district court's ruling on
municipal liability.
II. Certain Claims Are Time-Barred
The district court properly dismissed Kunik's claims based on
discriminatory actions taken prior to December 18, 2012 as time-barred. In New York,
"a plaintiff asserting a claim of discrimination under § 1983 must file suit within three
years of the adverse employment action." Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 79 (2d Cir. 2015). Here, Kunik filed her complaint on December 18, 2015.
Accordingly, to the extent her § 1983 claims rely on alleged adverse employment actions
that occurred prior to December 18, 2012, those claims are time-barred.
The district court also correctly determined that Kunik did not allege a
"continuing violation" that would allow time-barred claims to be considered timely. See
Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) (noting that this
exception does not apply to "discrete acts of discrimination . . . that occur outside the
statutory time period" (emphasis in original)). The discriminatory acts alleged to have
occurred prior to this date were discrete acts, such as performance reviews or work
assignment matters.
III. Certain Claims Are Not Facially Plausible
We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6).
See Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir.
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2012). The complaint must plead "enough facts to state a claim to relief that is plausible
on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
To establish a hostile work environment claim under § 1983, a plaintiff
must show that the workplace is "permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the conditions of [her]
employment and create[s] an abusive working environment." Littlejohn v. City of New
York, 795 F.3d 297, 320–21 (2d Cir. 2015) (internal quotation marks omitted). The
plaintiff must establish not only that she subjectively perceived her work environment
to be abusive, but also that "a reasonable person would find it hostile or abusive." Id. at
321 (internal quotation marks omitted). To be actionable under the Equal Protection
Clause, moreover, a plaintiff must show that the abusive conduct occurred because of her
membership in a protected class. Id. at 320. "Where an alleged constructive discharge
stems from an alleged hostile work environment, a plaintiff must show working
conditions so intolerable that a reasonable person would have felt compelled to resign."
Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010) (internal
quotation marks omitted). The standard for such a constructive discharge is "higher
than the standard for establishing a hostile work environment." Id.
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The district court correctly determined that Kunik's amended complaint
failed to state a claim for hostile work environment or constructive discharge because,
drawing all reasonable inferences in her favor, it did not plausibly allege that her work
environment was "permeated" with discrimination based on her age and religion,
Littlejohn, 795 F.3d at 320, or that a reasonable person would have felt "compelled to
resign" based on such discriminatory hostility, Fincher, 604 F.3d at 725. Kunik did not
allege any overt discrimination based on her age or religion, much less any facts
showing that "discriminatory intimidation, ridicule, and insult" was "sufficiently severe
or pervasive" to alter the conditions of her employment or created an abusive working
environment. Littlejohn, 795 F.3d at 320–21. While she did allege "religious
discrimination and/or age discrimination" based on defendants' "demeanor," App’x at
320, her allegations of implicit discrimination were speculative and conclusory.
IV. Certain Claims Do Not Present An Issue Of Fact For Trial
This Court reviews a grant of summary judgment de novo, "resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party." Garcia v. Hartford
Police Dep't, 706 F.3d 120, 127 (2d Cir. 2013) (per curiam). "Summary judgment is
proper only when, construing the evidence in the light most favorable to the non-
movant, 'there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.'" Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011)
(quoting Fed. R. Civ. P. 56(a)). A party cannot defeat a motion for summary judgment
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with "conclusory allegations or unsubstantiated speculation." Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 428 (2d Cir. 2001).
Employment discrimination claims brought under § 1983 and the Equal
Protection Clause are analyzed under the three-step McDonnell Douglas framework. See
Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). First, the plaintiff must
establish a prima facie case of discrimination by showing that (1) she is a member of a
protected class; (2) she is qualified for her position; (3) she suffered an adverse
employment action; and (4) the circumstances give rise to an inference of
discrimination. See Vega, 801 F.3d at 83. Once an employee has demonstrated a prima
facie case, "[t]he burden then shifts to the employer to 'articulate some legitimate,
nondiscriminatory reason' for the disparate treatment." Id. (quoting McDonnell Douglas
Corp., 411 U.S. at 802). "If the employer articulates such a reason for its actions, the
burden shifts back to the plaintiff to prove that the employer's reason was in fact pretext
for discrimination." Id. (internal quotation marks omitted). "A plaintiff sustains an
adverse employment action if he or she endures a materially adverse change in the
terms and conditions of employment." Id. at 85 (internal quotation marks omitted). The
change must be "more disruptive than . . . an alteration of job responsibilities," and may
consist of "a termination of employment, a demotion evidenced by a decrease in wage
or salary, a less distinguished title, a material loss of benefits, [or] significantly
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diminished material responsibilities." Shultz v. Congregation Shearith Israel of City of New
York, 867 F.3d 298, 304 (2d Cir. 2017) (internal citations and quotation marks omitted).
On appeal, Kunik contends only that she was subject to an adverse
employment action because her unsatisfactory performance review prevented her from
being able to teach summer school and obtain other optional "per-session" work for
additional income. She does not challenge the district court's other conclusions as to
alleged adverse employment actions.
The district court correctly determined that her unsatisfactory
performance review did not result in an adverse employment action as a matter of law
for several reasons. First, the record is clear that Kunik had not applied for any position
teaching summer school or other per-session work in 2013, the year she alleged she was
prevented from doing so by her poor performance review; in fact, she had missed the
deadline to apply before she received the rating. Moreover, DOE payroll records
showed that she had not taught summer school since 2003. An "unsatisfactory"
performance review is not an adverse employment action where it does not affect a
person's "compensation, benefits, or job title." Fairbrother v. Morrison, 412 F.3d 39, 56-57
(2d Cir. 2005), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006).
Second, even if Kunik had been denied the opportunity to earn income
through teaching summer school or other per-session work, a reasonable jury could not
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conclude that the denial of this additional work constituted "a material loss of benefits."
Shultz, 867 F.3d at 304. Kunik testified that this work was "outside [her] permanent
employment" and something she had to apply for. Kunik Deposition Tr. at 8–10, Kunik
v. New York City Dep’t of Educ., No. 15-cv-9512 (S.D.N.Y. Jan. 18, 2019), ECF No. 63-2.
Moreover, she was not earning income from per-session work at the time she received
the "Unsatisfactory" rating, and she did not provide evidence that she suffered any
other form of demotion or "material loss of benefits" as a result of that rating. Shultz,
867 F.3d at 304 (internal quotation marks omitted). Hence, the district court correctly
granted summary judgment on this basis. See Collins v. N.Y.C. Transit Auth., 305 F.3d
113, 118 (2d Cir. 2002).
In addition, Kunik also failed to present sufficient evidence to permit a
reasonable jury to find that any adverse action was motivated by discrimination or
retaliation. She testified that defendants never commented on her age or religion, and
she presented no evidence to support her speculative allegations that defendants
harbored implicit bias towards her based on her age or religion. See Bickerstaff v. Vassar
Coll., 196 F.3d 435, 456 (2d Cir. 1999) ("[feelings and perceptions] of being discriminated
against [are] not evidence of discrimination"). Moreover, although the record does
contain evidence that Kunik was treated differently from other teachers in her
department -- for example, she was given an "Unsatisfactory" performance review -- she
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did not present evidence from which a reasonable jury could find the disparate
treatment was motivated at least in part by her age or religion.
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We have reviewed Kunik's remaining arguments on appeal and conclude
they are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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Kunik v. N.Y.C. Dep't of Educ.
Combined Opinion