12-1601-cv
Serby 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 20th day of May, two thousand thirteen.
PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*
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ANNE SERBY,
Plaintiff-Appellant,
-v- 12-1601-cv
NEW YORK CITY DEPARTMENT OF EDUCATION,
FKA Board of Education of the City School
District of the City of New York, CITY OF
NEW YORK, JOEL I. KLEIN, as Chancellor of
the City School District of the City of
New York, MIATHERESA PATE-ALEXANDER,
individually and in her official capacity
as Principal of IS 109 Q, FKA Miatheresa
Pate, KARLEEN ADAM COMRIE, individually
*
The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
and in her official capacity as Assistant
Principal of IS 109 Q, LENON MURRAY,
individually and in his official capacity
as Community Superintendent of New York
State School District 29,
Defendants-Appellees.**
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FOR PLAINTIFF-APPELLANT: VICTOR M. SERBY, Law Office of
Victor M. Serby, Esq., Woodmere,
New York.
FOR DEFENDANTS-APPELLEES: SCOTT SHORR, Assistant Corporation
Counsel (Francis F. Caputo, on the
brief), for Michael A. Cardozo,
Corporation Counsel of the City of
New York, New York City Law
Department, New York, New York.
Appeal from the United States District Court for the
Eastern District of New York (Mauskopf, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Plaintiff-appellant Anne Serby appeals from a judgment
of the United States District Court for the Eastern District of
New York (Mauskopf, J.), entered March 21, 2012 pursuant to a
memorandum and order entered March 19, 2012, granting defendants'
motion for summary judgment and denying Serby's cross-motion for
partial summary judgment. Serby, formerly a probationary teacher
employed by the New York City Department of Education (the
**
The Clerk of Court is directed to amend the official
caption to conform to the above.
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"DOE"), brought this action against defendants-appellees the City
of New York, the DOE, and individual administrators at IS 109 Q,
the City School District, and School District 29 (collectively,
the "School"), asserting claims under the Family and Medical
Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., the New York State
Human Rights Law, N.Y. Exec. L. § 290 et seq., and the New York
City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. On
appeal, Serby challenges only the district court's grant of
summary judgment to the School on her FMLA retaliation claim. We
assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We review de novo a district court's grant of summary
judgment, construing the evidence and drawing all reasonable
inferences in the non-moving party's favor. Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010).
The FMLA entitles eligible employees to twelve
workweeks per year of unpaid leave for, inter alia, a serious
health condition that makes the employee unable to perform her
job functions. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161,
174 (2d Cir. 2006). At the end of an employee's FMLA leave, she
has a qualified right to return to the position she held before
the leave or its equivalent. See id. The FMLA creates a private
right of action for an employee to seek both equitable relief and
money damages against any employer that interferes with,
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restrains, or denies the exercise of FMLA rights. See id.
(citing Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25
(2003)).
We have analyzed retaliation claims pursuant to the
FMLA under the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Potenza v. City
of New York, 365 F.3d 165, 167-68 (2d Cir. 2004) (per curiam).
To establish a prima facie case of FMLA retaliation, Serby must
show that (1) she exercised rights protected under the FMLA, (2)
she was qualified for her position, (3) she suffered an adverse
employment action, and (4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory
intent. See id. at 168. The parties agree that the first three
elements are satisfied.
If Serby establishes a prima facie case, then the
burden shifts to the School to articulate a legitimate, non-
discriminatory reason for its actions. McDonnell Douglas, 411
U.S. at 802. If the School carries its burden, Serby must then
demonstrate that the School's articulated reason was pretextual.
See Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d
81, 92 (2d Cir. 2011) (citing McDonnell Douglas, 411 U.S. at 804-
05).
The district court concluded that Serby failed to
present evidence upon which a reasonable jury could find that the
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School's articulated reason for terminating Serby's employment --
her poor performance -- was pretextual. We agree.
First, Serby does not challenge the accuracy of the two
unfavorable ratings. In fact, Serby admitted to a colleague that
she had difficulty with class management. Moreover, the evidence
demonstrates that her two evaluators -- Principal Miatheresa
Pate-Alexander and Assistant Principal Karleen Adam-Comrie -- had
objective bases for the unfavorable ratings, including, for
example, Serby's difficulties managing her students. Serby
disagrees, apparently, with the School's judgment that chewing
gum and wearing hoods in class are serious concerns, but we have
no basis to second-guess these educational policy decisions, and
these disagreements do not support her claim of retaliation.
Second, Serby argues that a jury could reasonably find
that the timing of her "unsatisfactory" ratings evinces
retaliatory intent, i.e., that after she returned from FMLA
leave, she was given two unfavorable ratings only four business
days apart and denied any opportunity for further observation.
Those evaluations, however, were not conducted until April 2 and
8, 2008, more than eight weeks after Serby returned from leave.
Moreover, in light of all the circumstances, there is nothing
about the timing of the evaluations to suggest a retaliatory
intent.
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Third, Serby points to a reference by the Chairperson
of the Chancellor's Committee (the "Chairperson") to Serby's
"twenty-three (23) consecutive days of absences." In context,
however, as a reasonable jury could only find, the Chairperson
was merely responding to Serby's argument that she was not given
opportunity for further observation. To rebut this explanation
of the Chairperson's statement, Serby was obliged to produce "not
simply some evidence, but sufficient evidence to support a
rational finding that the legitimate, non-discriminatory reasons
proffered by [the School] were false, and that more likely than
not discrimination was the real reason for the employment
action." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000) (alterations and internal quotation marks omitted). She
failed to do that.
We agree with the district court that Serby's claim
also fails using a mixed-motive analysis. To satisfy her initial
burden in a mixed-motive case, a plaintiff must "produce a
smoking gun or at least a thick cloud of smoke to support [her]
allegations of discriminatory treatment." Raskin v. Wyatt Co.,
125 F.3d 55, 61 (2d Cir. 1997) (internal quotation marks
omitted). Having presented no such evidence, Serby has failed to
satisfy this initial burden. Because Serby's claim fails under
either the McDonnell Douglas burden-shifting framework or the
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mixed-motive analysis, we need not decide which applies to an
FMLA retaliation claim.
We have considered Serby's remaining arguments and
conclude they are without merit. Accordingly, the district
court's judgment is AFFIRMED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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