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United States Court of Appeals, Second Circuit.

HOWARD JONES, Plaintiff-Appellant, v. ROCHESTER CITY SCHOOL DISTRICT, Defendant-Appellee.

No. 15-3422

Decided: January 25, 2017

PRESENT: PETER W. HALL, DEBRA ANN LIVINGSTON, CHRISTOPHER F. DRONEY, Circuit Judges. For Plaintiff-Appellant: MELVIN BRESSLER, Pittsford, NY. For Defendant-Appellee: CARA BRIGGS, Associate General Counsel, Rochester City School District, Rochester NY.


Appellant Howard Jones appeals from a final judgment granting summary judgment in favor of the defendant and dismissing his claims for retaliation, pleaded as violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law (“NYSRHL”). We assume the parties' familiarity with the underlying facts and the procedural history of this case.

We review de novo an award of summary judgment for claims under Title VII, § 1981, and the NYSHRL. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010); see Garcia v. Hartford Police Dept., 706 F.3d 120, 126-27 (2d Cir. 2013) (§ 1981). “Summary judgment is appropriate where ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).

We analyze Appellant's retaliation claims according to standards applicable to Title VII. Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010); see Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (“Most of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of § 1981.”); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996) (“We consider [plaintiff's] state law claims in tandem with her Title VII claims because New York courts rely on federal law when determining claims under the New York [State] Human Rights Law.”). “Federal and state law retaliation claims are reviewed under the burden-shifting approach of McDonnell Douglas.” Zann Kwan, 737 F.3d at 843. “Under the first step of the McDonnell Douglas framework, the plaintiff must establish a prima facie case of retaliation by showing 1) ‘participation in a protected activity’; 2) the defendant's knowledge of the protected activity; 3) ‘an adverse employment action’; and 4) ‘a causal connection between the protected activity and the adverse employment action.’ ” Id. at 844 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (citation and internal quotation marks omitted)). The plaintiff's burden of proof at this first step is “minimal.” Id. (internal quotation marks omitted).

Appellant does not dispute that, if he received his right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”) on June 29, 2011, his Title VII claim was untimely. Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) (“In order to be timely, a claim under Title VII ․ must be filed within 90 days of the claimant's receipt of a right-to-sue letter.”); 42 U.S.C. § 2000e-5(f)(1). He asserted in his complaint, and confirmed during summary judgment, that he did in fact receive the right-to-sue letter on June 29, 2011. On appeal, he attaches a letter from the Director of the Buffalo office of the EEOC stating that the EEOC's computer log reflects that the right-to-sue letter was mailed to Appellant's attorney on June 29, 2011. According to Appellant, we should assume that he did not receive the letter for at least three days, rendering his Title VII claim timely. See, e.g., Sherlock, 84 F.3d at 525 (“Normally it is assumed that a mailed document is received three days after its mailing.”). We decline to apply this assumption because Appellant made clear in his complaint and summary judgment papers that he received the letter on June 29, 2011.

The district court, moreover, correctly ruled that all of Appellant's retaliation claims—including the claim brought under Title VII—failed on the merits. The district court concluded that the gravamen of the complaint, that the defendant punished Jones for filing an EEOC complaint, failed because the defendant disciplined him before it was aware that he had filed a complaint with the EEOC. Appellant does not challenge this ruling on appeal. Instead, he points to other evidence of retaliation, i.e., that his job evaluation scores were changed, he was prevented from working overtime, and he was disciplined for being late to work during a blizzard. The district court correctly concluded, however, that his vague statements concerning the denial of overtime were insufficient to survive summary judgment.

Although the district court did not address Appellant's testimony regarding the changed evaluation scores and the blizzard incident, “[w]e may, of course, affirm on any ground that finds supports in the record.” In re Adderall XR Antitrust Lit., 754 F.3d 128, 134 n.4 (2d Cir. 2014). We easily conclude that neither Appellant's testimony nor his conclusory contentions on appeal draw a sufficient connection between these incidents and any protected activity. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (observing that the temporal proximity between an employer's knowledge of a protected activity and an adverse employment action “must be very close” (internal quotation marks omitted)); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010 (observing that the non-moving party “may not rely on conclusory allegations or unsubstantiated speculation”); Hayut v. State Univ. of New York, 352 F.3d 733, 743 (2d Cir. 2003) (“The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].”).

We have considered all of Appellant's arguments and conclude that they are without merit. We therefore AFFIRM the judgment of the district court.


Catherine O'Hagan Wolfe, Clerk

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