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Marlene Augustine, Lisa Cabrera, Plaintiffs, v. CORNELL UNIVERSITY (2019)

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United States Court of Appeals, Second Circuit.

Keisha BROWN, Ivette Francis, Tammy Smith, Plaintiffs-Appellants, Marlene Augustine, Lisa Cabrera, Plaintiffs, v. CORNELL UNIVERSITY, Weill Cornell Medical College, Kristen Adams, Individually, Defendants-Appellees.

No. 18-1185-cv

Decided: March 22, 2019

PRESENT: PIERRE N. LEVAL, RAYMOND J. LOHIER, JR., Circuit Judges, LEWIS A. KAPLAN,* District Judge. FOR PLAINTIFFS-APPELLANTS: Michael Confusione, Hegge & Confusione, LLC, Mullica Hill, NJ. FOR DEFENDANTS-APPELLEES: Benjamin E. Stockman (Brian J. Clark, on the brief), Venable LLP, New York, NY.


Keisha Brown, Ivette Francis, and Tammy Smith appeal from a judgment of the District Court (Oetken, J.) granting summary judgment to the defendants on the plaintiffs-appellants’ claims of race discrimination and retaliation in violation of 42 U.S.C. § 1981 and the New York City Human Rights Law. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

After reviewing the entire record, we affirm substantially for reasons stated by the District Court in its opinion and order dated March 26, 2018.2

We have considered all the arguments raised by the plaintiffs-appellants on appeal and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.


2.   We believe that the District Court erred in excluding the plaintiffs’ evidence of certain promotions of white employees on the ground that it was “time-barred.” While it is true that the promotions would have been time-barred as “discrete discriminatory acts” that are actionable, the promotions may nevertheless serve as “evidence in support of a timely claim.” See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d Cir. 2004) (quoting Morgan, 536 U.S. at 113, 122 S.Ct. 2061), we similarly explained that “promotion claims may not be based on discrete acts falling outside the limitations period,” but that “evidence of ․ promotion denials [occurring at that time] may constitute relevant ‘background evidence in support of a timely claim.’ ” The admission of that evidence does not change the outcome in this case, because the plaintiffs’ claims nonetheless fail for other reasons, such as that the promoted employees were not similarly situated, as described by the District Court.

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