17‐635‐cv (L)
Toussaint v. NY Dialysis Servs., Inc.
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.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 19th day of December, two thousand
4 seventeen.
5
6 PRESENT: GUIDO CALABRESI,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 EDWARD R. KORMAN,
10 District Judge.*
11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12 LESLIE TOUSSAINT,
13
14 Plaintiff–Appellant–Cross‐Appellee,
15
16 v. Nos. 17‐635 (L), 17‐636 (XAP)
17
18 NY DIALYSIS SERVICES, INC.,
19
20 Defendant–Appellee–Cross‐Appellant.**
* Judge Edward R. Korman, of the United States District Court for the Eastern District of
New York, sitting by designation.
** At oral argument, counsel for NY Dialysis Services withdrew its cross appeal of the
District Court’s denial of its motion for sanctions pursuant to 28 U.S.C. § 1927 and
Federal Rule of Civil Procedure 11(b).
1 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
2
3 FOR APPELLANT: MICHAEL H. SUSSMAN, Sussman &
4 Associates, Goshen, NY.
5
6 FOR APPELLEES: EVE I. KLEIN (Katelynn M. Gray, on
7 the brief), Duane Morris LLP, New
8 York, NY.
9
10 Appeal from a judgment of the United States District Court for the
11 Southern District of New York (Kenneth M. Karas, Judge). UPON DUE
12 CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
13 that the judgment of the District Court is AFFIRMED.
14 Leslie Toussaint appeals from a judgment of the District Court (Karas, J.)
15 granting summary judgment to NY Dialysis Services, Inc. (“NYDS”) on his race
16 discrimination claim under 42 U.S.C. § 1981 and section 296 of the Executive Law
17 of the State of New York. We assume the parties’ familiarity with the facts and
18 record of the prior proceedings, to which we refer only as necessary to explain our
19 decision to affirm.
20 On summary judgment, claims for race discrimination under section 296
21 and 42 U.S.C. § 1981 are analyzed under the familiar burden‐shifting framework
22 set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See
23 Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (42 U.S.C. § 1981);
2
1 Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000) (section 296).
2 Under that framework, once a plaintiff who lacks direct evidence of
3 discrimination establishes a prima facie case, the burden of production shifts to
4 the defendant to “offer a legitimate nondiscriminatory reason for the
5 termination.” Ruiz, 609 F.3d at 491–92. If the defendant is able to do so, the
6 plaintiff must show that the defendant’s proffered reason was a pretext for
7 discrimination. Id. at 492.
8 Toussaint first argues that the District Court erred in holding that because
9 no reasonable jury could conclude that he was terminated “under circumstances
10 giving rise to the inference of discrimination,” he failed to make a prima facie case
11 of race discrimination. Id. “A plaintiff may raise such an inference by showing
12 that the employer subjected him to disparate treatment, that is, treated him less
13 favorably than a similarly situated employee outside his protected group.”
14 Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). Toussaint argues that
15 NYDS treated him less favorably than Amanda Warbington, the “non‐black
16 technician who provoked his response.”1 Joint App’x 15.
17
1 Except for his contention that Warbington was treated more favorably, Toussaint offers
no evidence, or even allegations, that he was discriminated against on the basis of race.
3
1 But even assuming arguendo that Toussaint had established a prima facie
2 case, he failed to demonstrate that NYDS’s proffered reason for his firing was
3 pretextual. Toussaint argues that a reasonable jury could so conclude because
4 NYDS incorrectly credited Warbington’s account of the September 13 incident,
5 while rejecting Toussaint’s. But “we are decidedly not interested in the truth of
6 the allegations against plaintiff. We are interested in what motivated the
7 employer.” McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006)
8 (quotation marks omitted). Toussaint failed to adduce any evidence that NYDS
9 did not sincerely believe Warbington’s account or that otherwise would permit a
10 reasonable factfinder to conclude that race was the real reason for Toussaint’s
11 termination. See Graham, 230 F.3d at 44.
12 We have considered Toussaint’s remaining arguments and conclude that
13 they are without merit. For the foregoing reasons, the judgment of the District
14 Court is AFFIRMED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk of Court
4
Toussaint v. NY Dialysis Servs., Inc.
Combined Opinion