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Jurisdiction: Court of Appeals for the Second Circuit
Decision Date: 11/21/2017



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Martinez v. Davis Polk & Wardwell LLP Martinez v. Davis Polk & Wardwell LLP (2nd Cir., 2017)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        EUNICE MARTINEZ, Plaintiff-Appellant,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DAVIS POLK & WARDWELL LLP, Defendant-Appellee.


                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 21, 2017

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        EUNICE MARTINEZ, Plaintiff-Appellant, v. DAVIS POLK & WARDWELL LLP, Defendant-Appellee.


                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 21, 2017

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                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 21 day of November, two thousand seventeen.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Present: ROSEMARY S. POOLER, DEBRA ANN LIVINGSTON, DENNY CHIN, Circuit Judges

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        For Plaintiff-Appellant:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ROOSEVELT SEYMOUR, Brooklyn, NY.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        For Defendant-Appellee:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        BARRY ASEN (Lauren Malanga, Barbara O'Brien Burke, on the brief), Epstein Becker & Green, P. C New York, NY.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Appeal from a judgment of the United States District Court for the Eastern District of New York (Block, J. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                UPON DUE CONSIDERATION IT IS HEREBY ORDERED ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff-Appellant Eunice Martinez appeals from the final judgment of the United States District Court for the Eastern District of New York, entered on September 23, 2016, granting summary judgment to Defendant-Appellee Davis Polk & Wardwell LLP ("DPW"), on Martinez's claims for discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq 42 U.S.C. § 1981, and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. See Martinez v. Davis Polk & Wardwell LLP 208 F. Supp. 3d 480 (E. D. N.Y. 2016). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. Race Discrimination

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Martinez sets forth two theories for her discrimination claim: (1) DPW awarded her lower salary raises because she is Hispanic; and (2) DPW failed to upgrade her non-managerial position to a managerial position because she is Hispanic. The District Court concluded that Martinez failed to establish a prima facie case under either theory. Martinez 208 F. Supp. 3d at 488-89. We review the district court's grant of summary judgment de novo and we "may affirm on any basis that finds support in the record. " Tolbert v. Smith 790 F. 3d 427 434 (2d Cir. 2015). Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. " Fed. R. Ci v. P. 56(a). We construe all ambiguities and draw all reasonable inferences against the moving party. Tolbert 790 F. 3d at 434.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Martinez bears the initial burden of establishing a prima facie case of discrimination by showing "(1) she belonged to a protected class; (2) she was qualified for the position she held; (3) she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. " Brown v. City of Syracuse 673 F. 3d 141 150 (2d Cir. 2012). After a plaintiff has successfully established a prima facie case, "the burden then shifts to the employer to 'articulate some legitimate, nondiscriminatory reason' for the adverse employment action. " Vega v. Hempstead Union Free Sch. Dist 801 F. 3d 72 83 (2d Cir. 2015) (quoting McDonnell Douglas Corp. v. Green 411 U.S. 792 802 (1973)). "If the employer articulates such a reason for its actions, the burden shifts back to the plaintiff to prove that the employer's reason 'was in fact pretext' for discrimination. " Id. (citations omitted). At this point, the plaintiff must produce "not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not discrimination was the real reason for the discharge. " Van Zant v. KLM Royal Dutch Airlines 80 F. 3d 708 714 (2d Cir. 1996) (internal quotation marks and alteration omitted).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                1. Lower Salary Raises

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                We agree with the district court that Martinez failed to establish a prima facie case of "unequal pay for equal work" based on her allegations that she and other Hispanic employees received lower salary raises than non-Hispanic employees in her department. Martinez 208 F. Supp. 3d at 489; see also Tomka v. Seiler Corp 66 F. 3d 1295 1312 (2d Cir. 1995), abrogated on other grounds by Burlington Indus Inc. v. Ellerth 524 U.S. 742 (1998) ("A claim for unequal pay for equal work under Title VII . . . is generally analyzed under the same standards used in an Equal Pay Act claim. "). To prove pay discrimination, Martinez must satisfy the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        "demanding" standard of the "equal work inquiry . . . which requires evidence that the jobs compared are substantially equal. " EEOC v. Port Auth. of New York & New Jersey 768 F. 3d 247 255 (2d Cir. 2014) (internal quotation marks and citation omitted). But here, Martinez conceded that she does not do "equal work" in comparison to any of her colleagues—in her brief she admits that she "holds a unique position and there is no point of comparison. " Pl. -Appellant Br. 10. Martinez also testified during her deposition that she was not qualified to do the jobs of six of her proposed seven comparators.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Furthermore, Martinez's claim of lower salary raises for Hispanics is unsupported by the evidence in the record. Martinez points to a few years in which her non-Hispanic coworkers were awarded greater than three percent in raises, and argues that she and her Hispanic coworkers have been "systematically receiving smaller percentage annual merit raises than whites. " Pl. -Appellant Br. 17. Yet Martinez neglects to address the many instances in which she and her Hispanic coworkers also received raises that exceeded three percent. The evidence shows that Martinez was not only the highest-paid non-managerial employee, her salary (when overtime wages are considered) was also higher than two managerial employees, at least in certain years. Martinez thus failed to establish a prima facie case that she has been subjected to salary discrimination based on race.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                2. Promotional Upgrade

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The district court also did not err in rejecting Martinez's discrimination claim based on the alleged failure to promote or to upgrade the positions of Hispanic employees in her department. Martinez relies only on statistically insignificant data showing that Hispanic employees have never been upgraded from non-managerial to managerial positions even though several non-Hispanic employees have been upgraded. Although we can consider statistically

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        insignificant data as relevant to Martinez's discrimination claim, "more particularized evidence relating to the individual plaintiff is necessary to show discriminatory treatment. " Zahorik v. Cornell Univ 729 F.2d 85 95 (2d Cir. 1984); see also Weinstock v. Columbia Univ 224 F. 3d 33 46 (2d Cir. 2000) (noting "raw data" that purportedly shows "a pattern of under-representation" provides "little but an unsupported hypothesis" and "no foundation for the assertion that there was discrimination, " absent additional proof). Here, Martinez failed to present any particularized evidence of discriminatory treatment based on her race. Moreover, if we assume, arguendo that Martinez set forth a prima facie case, DPW has proffered legitimate, nondiscriminatory reasons for not upgrading Martinez's Managing Editor position and Martinez did not provide sufficient evidence to demonstrate that DPW's reasons were pretextual. See Grady v. Affiliated Cent Inc 130 F. 3d 553 561 (2d Cir. 1997) ("The creation of a genuine issue of fact with respect to pretext alone is not sufficient. There must also be evidence that would permit a rational factfinder to infer that the adverse employment action was actually motivated, in whole or in part, by discrimination . . . . ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                DPW brought forward evidence that Martinez's position was not upgraded because her responsibilities were "administrative and clerical, not managerial. " Def. -Appellee Br. 33. Martinez failed to present any evidence to the contrary. Martinez makes conclusory assertions that a number of white non-managerial employees were also "performing functions that can be properly described as 'administrative, ' yet they were eventually upgraded to managers. " Pl. -Appellant Br. 25. But such conclusory allegations are insufficient to rebut DPW's business decision to classify Martinez's Managing Editor position as non-managerial. We do not second-guess an employer's personnel decision, so long as those decisions are not based on unlawful grounds such as racial discrimination. Byrnie v. Town of Cromwell Bd. of Educ 243

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 6

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        F.3d 93, 103 (2d Cir. 2001) ("Our role is to prevent unlawful hiring practices, not to act as a 'super personnel department' that second guesses employers' business judgments" (citation omitted)). Here, Martinez has presented no evidence to suggest that DPW's business judgment was based on unlawful grounds.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                DPW also presented evidence that it declined to upgrade Martinez's Managing Editor position because "her job performance needed to improve, especially her project and time management skills. " Def. -Appellee Br. 33. Martinez failed to present evidence permitting a rational factfinder to conclude that this reason was pretextual, and that DPW's decision not to upgrade her position was motivated, at least in part, by discrimination. DPW presented performance reviews from three different managers over the course of three years that commented on Martinez's time and project management problems within her department. Martinez also admitted in deposition testimony that she struggled with time management because "her workload had increased significantly" and so she had to "work a substantial amount of overtime hours" as a result. Pl. -Appellant Br. at 27. Absent evidence establishing that discrimination played at least a part in the decision not to upgrade Martinez's position, the district court did not err in concluding that summary judgment was appropriate.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                B. Retaliation

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                We also agree with the district court's conclusion that Martinez failed to establish a prima facie case of retaliation. Martinez 208 F. Supp. 3d at 489-90. "To establish a prima facie case of retaliation, a plaintiff must show (1) that she participated in a protected activity, (2) that she suffered an adverse employment action, and (3) that there was a causal connection between her engaging in the protected activity and the adverse employment action. " Gorzynski v. JetBlue Airways Corp 596 F. 3d 93 110 (2d Cir. 2010) (citation omitted). Martinez failed to

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 7

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        establish a causal connection. She claims that after she filed her complaint with the Equal Employment Opportunity Commission ("EEOC") on August 18, 2013, DPW retaliated by (1) reducing her customary annual raise from three percent to one and one-half percent; and (2) no longer inviting her to attend certain meetings. However, the only evidence Martinez offered to prove a causal connection is "the close proximity in time" between filing her charges with the EEOC and DPW's allegedly retaliatory actions. Pl. -Appellant Br. 30.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The district court correctly observed that "where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise. " Martinez 208 F. Supp. 3d at 489 (quoting Slattery v. Swiss Reinsurance Am. Corp 248 F. 3d 87 95 (2d Cir. 2001)). Martinez began receiving performance reviews that noted her struggles with time and project management as early as August 5, 2010, three years before Martinez's filing of the EEOC charges. And Martinez admitted during her deposition that at the time she filed her EEOC charges, she anticipated a negative performance review that again criticized her time and project management problems, and she was even concerned that she might be terminated. Under these circumstances, a reasonable jury could not conclude that DPW's treatment of Martinez in the wake of her EEOC filing (including by affording her a small pay raise) was retaliatory as opposed to the culmination of "gradual adverse job actions" that began three years prior to the alleged retaliatory event. Slattery 248 F. 3d at 95 (holding that a company that "diminished a plaintiff's job responsibilities a full five months prior to his filing of the EEOC charges" did not give rise to an inference of retaliation (emphasis in original)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        * * *

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 8

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                We have considered Martinez's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                FOR THE COURT:         Catherine O'Hagan Wolfe, Clerk

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