11-4406-cv
Gioia v. Forbes Media LLC
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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 5th day of November, two thousand and twelve.
PRESENT:
JOHN M. WALKER, JR.,
DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_______________________________________________
JOHN GIOIA, as executor of Linda Antonelli, deceased,
ANDRES RAATMA, as executor of Linda Antonelli,
deceased,
Plaintiffs-Appellants,
LINDA ANTONELLI,
Plaintiff,
-v.- No. 11-4406-cv
FORBES MEDIA LLC, FORBES INC., FORBES UNITED
HEALTHCARE HEALTH PLAN,
Defendants-Appellees.
_______________________________________________
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REBECCA J. OSBORNE (Anne C. Vladeck, on the brief),
Vladeck, Waldman, Elias & Engelhard, P.C., New York, N.Y.,
for Plaintiffs-Appellants.
PATRICK M. COLLINS, McCarter & English, LLP, New York,
N.Y., for Defendants-Appellees.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
that the judgment of the District Court entered on September 30, 2011 is AFFIRMED.
Plaintiffs-Appellants John Gioia and Andres Raatma appeal from a September 30, 2011 order
of the United States District Court for the Southern District of New York (Sullivan, J.) granting
summary judgment on Linda Antonelli’s claims of unlawful interference with health plan benefits
in violation of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140, and
employment discrimination in violation of the New York State Human Rights Law, N.Y. Exec. Law
§ 296 (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107
(“NYCHRL”). Plaintiffs-Appellants are executors of Antonelli’s estate. We assume the parties’
familiarity with the underlying facts and procedural history of this case.
We review an order granting a motion for summary judgment de novo, resolving all
ambiguities and drawing all permissible factual inferences in favor of the non-moving party.
Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A genuine issue of fact exists for summary judgment purposes
“where the evidence is such that a reasonable jury could decide in the non-movant’s favor.” Beyer
v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (citing Guilbert v. Gardner, 480 F.3d 140, 145
(2d Cir. 2007)). A party “must provide more than conclusory allegations to resist a motion for
summary judgment” and must “show more than ‘some metaphysical doubt as to the material facts.’”
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Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
1. ERISA
ERISA § 510 makes it unlawful for an employer to, among other things, terminate an
employee either in retaliation for using a qualified employee health plan or in order to interfere with
the employee’s use of that plan. 29 U.S.C. § 1140. ERISA discrimination claims are evaluated
under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1111–12 (2d Cir. 1988). Under that framework, if
a plaintiff puts forth a prima facie case of discrimination and the defendant then provides a non-
discriminatory reason for its actions, the burden shifts back to the plaintiff to prove that the
defendant’s proffered reason is pretextual. Id. at 1111. Here, Defendants-Appellees Forbes Media
LLC, Forbes Inc., and Forbes United Healthcare Health Plan (“Forbes Media”) contend that
Antonelli was terminated as part of an effort to reduce costs during an economic downturn. The
District Court held that Plaintiffs-Appellants failed to raise a genuine issue as to whether this reason
was a pretext for discrimination. We agree.
As we have said, an “essential element” of this ERISA claim is that defendants were
motivated by a specific intent to engage in activity prohibited by § 510 so that the loss of benefits
was not “a mere consequence of, but . . . a motivating factor behind, a termination of employment.”
Id. (quoting Titsch v. Reliance Grp., Inc., 548 F. Supp. 983, 985 (S.D.N.Y. 1982)) (internal
quotation marks omitted). Here, there is no evidence that Moira Forbes and Meredith Levien, the
supervisors who made the decision to lay off Antonelli in November 2008, had any knowledge of
Antonelli’s health insurance claims or claim history. Plaintiffs-Appellants argue that Forbes Media
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hired new employees around the same time it fired Antonelli, undercutting the claim that her
termination was part of an effort to reduce costs. The record is undisputed, however, that those new
employees filled different, preexisting positions, and that Antonelli was one of at least three people
terminated in her working group between November 2008 and May 2009. We similarly conclude
that the November 11, 2008 email sent between Antonelli’s supervisors fails to establish a genuine
issue of fact. Nothing in that email suggests an intent on the supervisors’ part to terminate Antonelli
in order to cut health care costs. And Plaintiffs-Appellants do not dispute that Forbes Media, facing
a deteriorating business environment in 2008 and 2009, terminated a number of other employees
across its various departments.
2. NYSHRL and NYCHRL Claims
The NYSHRL and NYCHRL make it unlawful, among other things, for an employer to
discharge an employee because of his or her disability. N.Y. Exec. Law § 296(1); N.Y.C. Admin.
Code § 8-107. The NYSHRL and NYCHRL also prohibit retaliation against employees for
engaging in protected conduct, N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107, which we
assume for purposes of this appeal to include seeking accommodations for a disability.
Discrimination and retaliation claims under § 296 of the NYSHRL are also analyzed under
the McDonnell Douglas framework. Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010).
Assuming arguendo that Plaintiffs-Appellants made out prima facie cases of discrimination and
retaliation under the NYSHRL, they still failed to raise a genuine issue as to whether Forbes Media’s
proffered reason for terminating Antonelli was pretextual. Plaintiffs-Appellants point to five emails
sent between Forbes and other coworkers that contain negative and insensitive remarks about
Antonelli. These emails, however, took place months before Antonelli was terminated, and while
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disparaging of Antonelli, are not a sufficient basis on which to conclude that she was terminated
because of her illness, as opposed to Forbes Media’s diminishing business prospects. We have said
that “stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make
out a case of employment discrimination.” Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir.
1998). Such is the case with regard to these emails.
We review claims under the NYCHRL “independently from and ‘more liberally’ than”
federal or state discrimination claims. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d
Cir. 2009) (citing Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 31 (N.Y. App. Div. 1st Dep’t
2009)). Moreover, since the District Court’s decision here, the First Department has addressed
“whether, and to what extent, the three-step burden-shifting approach set forth in [McDonnell
Douglas] must be modified for City HRL claims.” Bennett v. Health Mgmt. Sys., Inc., 936 N.Y.S.2d
112, 116 (N.Y. App. Div. 1st Dep’t 2011). Bennett explained that in order to obtain summary
judgment on a NYCHRL claim, a defendant must show that “no jury could find defendant liable
under any of the evidentiary routes: under the McDonnell Douglas test, or as one of a number of
mixed motives, by direct or circumstantial evidence.” Id. at 121.
We assume arguendo that Bennett correctly states the standards to be applied to NYCHRL
claims. We nevertheless conclude that even pursuant to a mixed-motive framework there is still no
genuine issue as to whether discriminatory intent motivated Antonelli’s termination. Antonelli was
one of many employees laid off by Forbes Media at a time when its business prospects were
deteriorating. Short of speculation, there is no evidence that Antonelli’s illness played even a partial
motivating role in the decision to terminate her.
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Nor have Plaintiffs-Appellants established a genuine issue of fact as to whether retaliatory
intent motivated Antonelli’s termination, pursuant to either the NYSHRL or the NYCHRL.
Plaintiffs-Appellants have put forth no evidence that Antonelli’s requests for accommodation, which
included time off to go to doctors’ appointments and taxi rides to work, provoked animus in her
supervisors. To the contrary, her supervisors readily granted these requests. Nor is there any
temporal proximity between when Antonelli first requested these accommodations and when she
lost her job. Given this lack of evidence, the district court rightly dismissed both the NYSHRL and
NYCHRL claims.
We have reviewed the Plaintiffs’ remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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