DEMUTH v. Maria Contreras-Sweet, Administrator, Defendant. (2020)

SUMMARY ORDER

Proceeding pro se, plaintiff-appellant Sandra DeMuth appeals the judgment of the district court dismissing her claims against defendants-appellees the United States Small Business Administration (“SBA”) and Acting SBA Administrator Christopher Pilkerton (together, “defendants”). By decision and order entered May 3, 2019, the district court adopted the conclusions of the Magistrate Judge's report and recommendation (“R&R”) and granted defendants' motion for summary judgment. In her complaint, DeMuth, who was then represented by counsel, alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and state law in connection with, inter alia, defendants' termination of her employment. On appeal, DeMuth argues principally that the record presents disputed issues of material fact that precluded the granting of summary judgment.¹ We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

DeMuth worked for the SBA as an informational technology (“IT”) specialist from 2005 until 2011. DeMuth alleged, inter alia, that defendants discriminated against her on the basis of her gender, and that after she sought counseling from the SBA's Equal Employment Office (“EEO”), defendants retaliated by dismissing her.

We review 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, 126-27 (2d Cir. 2013). Although courts must draw all inferences in favor of the non-moving party, “reliance upon conclusory statements or mere allegations is not sufficient to defeat a summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). “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)).

Employment discrimination and retaliation claims under Title VII are analyzed under the McDonnell Douglas burden shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (discrimination); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843-44 (2d Cir. 2013) (retaliation). Under this framework, (1) a plaintiff must first establish a prima facie case of discrimination (or retaliation); (2) if the employee does so, the burden then shifts to the employer to articulate a legitimate, non-discriminatory (or non-retaliatory) reason for the adverse action. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Kwan, 737 F.3d at 835. If the employer satisfies its burden, the plaintiff must then show that the reasons presented were a “pretext for discrimination” (or retaliation). Lenzi v. Systemax, Inc., 944 F.3d 97, 108 (2d Cir. 2019) (internal quotation marks omitted). To survive summary judgment, “[t]he plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination [or retaliation] was the real reason for the employment action.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (internal quotation marks and brackets omitted).

Here, we conclude that no reasonable jury could find that DeMuth was dismissed for a discriminatory or retaliatory reason. DeMuth admitted that neither her supervisor, Thomas Guido, nor any other SBA supervisors criticized her work in sexist terms or made derogatory statements about women. Further, though on appeal DeMuth asserts that her colleague William Malek “was unwilling to learn anything from a woman, much less regard me as a coworker,” Appellant's Br. at 8, beyond this conclusory allegation, she fails to identify any evidence in the record to suggest that her gender or her seeking counseling from the EEO was a motivating factor in the decision to terminate her employment. See Davis, 316 F.3d at 100. Moreover, defendants presented evidence that her declining performance was a legitimate, non-discriminatory reason for her termination, see McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817, and DeMuth failed to present any evidence to show that this was a pretext for discrimination or retaliation, see Weinstock, 224 F.3d at 42. Accordingly, we conclude that the district court did not err when it granted defendants' motion for summary judgment.²

We have considered DeMuth's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOOTNOTES

1.   In her complaint, DeMuth asserted claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. She abandoned her ADEA claim prior to summary judgment, however, and does not raise her claims under the Rehabilitation Act on appeal. Accordingly, these claims are waived. See Ahlers v. Rabinowitz, 684 F.3d 53, 66 (2d Cir. 2012) (finding that “[i]ssues not sufficiently argued in the briefs are considered waived”) (internal quotation marks omitted); Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (holding, in appeal brought by pro se litigant, that issue not mentioned in appellant's brief was waived). Moreover, DeMuth alleges hostile work environment claims and raises the Equal Pay Act for the first time on appeal. Claims not raised below are waived. See Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 252-53 (2d Cir. 2017) (noting than “an appellate court will not consider an issue raised for the first time on appeal”) (internal quotation marks omitted). Accordingly, we decline to consider these claims as well.

2.   DeMuth challenges the district court's determination that, because she first sought EEO counseling on October 15, 2010, any Title VII claims that relied on events prior to September 1, 2010 were time-barred. We are unpersuaded. Federal employees are required to exhaust administrative remedies by initiating EEO counseling within 45 days of a discriminatory act. See 29 C.F.R. § 1614.105(a); Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (“The 45-day period serves as a statute of limitations; thus, as a general rule, claims alleging conduct that occurred more than 45 days prior to the employee's initiation of administrative review are time-barred.”). Moreover, the continuing violation doctrine is inapplicable as the allegedly discriminatory acts are discrete acts and the continuing violation doctrine does not apply to discrete acts. See Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 156 (2012).