Chukwurah v. Stop & Shop Supermarket Company

SUMMARY ORDER Plaintiff-appellant Victor Chukwurah (“plaintiff’ or “Chukwurah”) appeals from a summary judgment of the District Court entered on October 24, 2008, in favor de~ fendants-appellees, Stop & Shop Supermarket Company LLC (“Stop & Shop”) and several of its managers. In the underlying action plaintiff asserted claims for: (1) discrimination based on race, national origin, color, and age pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981, and the Connecticut Fair Employment Practices Act (“CFEPA”), Con. Gen. Stat. § 46a-60, et seq.; and (2) retaliatory discharge pursuant to Title VII, the CFE-PA, and Connecticut common law of retaliatory discharge. In a ruling from the bench, the District Court applied the familiar three-step burden shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), 1 and held that (1) plaintiff failed to establish a prima facie case for discrimination because, in light of his poor performance reviews, he had not shown that his job performance was satisfactory and (2) in the alternative, even assuming plaintiff had established a prima facie case, he had not come forward with any evidence from which a reasonable jury could find that the nondiscriminatory reason given for his discharge was a pretext for discrimination. The District Court also dismissed Chukwu-rah’s retaliation claims. With respect to his claim that defendants retaliated against him for joining a class action lawsuit under the Fair Labor Standards Act, the District Court noted that the adverse employment action Chukwurah complained of had actually occurred before he joined in the class action and, further, that there was no evidence that plaintiffs supervisors were aware of his participation in that lawsuit. With respect to his claim that defendants retaliated against him for filing a complaint with the Connecticut Commission on Human Rights and Opportunities (“CHRO”), the District Court held that there was no evidence from which a reasonable jury could find that the stated reason for plaintiffs discharge was a pretext for retaliation. On appeal plaintiff argues primarily that the District Court erred in relying on the performance reviews prepared by defendants and in failing to recognize plaintiffs evidence that he was subjected to disparate treatment. We assume the parties’ familiarity with the remaining factual and procedural history of the case. Even assuming plaintiff established a prima facie case of discrimination, see Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir.2001) (holding that it was error to find that plaintiff had not established a prima facie case merely be *495 cause employer was dissatisfied with plaintiffs performance and noting that “plaintiff must show only that he possesses the basic skills necessary for performance of the job” (internal quotation marks and brackets omitted)), we agree with the District Court that plaintiff failed to offer any evidence from which a reasonable jury could infer that the legitimate, nondiscriminatory reason for discharge offered by defendants — plaintiffs poor performance — was a pretext for discrimination. In the years prior to his termination, Chukwurah received consistently negative employment reviews. Those reviews characterized his performance as requiring improvement or less than competent. Although he asserts that some of the documents in his personnel file are of “dubious origin” and “recent fabrieation[s],” see Appellant’s Br. 23, Chukwurah himself signed most of the reviews that document his performance as being substandard. Moreover, he fails to identify any evidence that refutes defendants’ characterization of his performance. 2 Nor has plaintiff presented evidence of disparate treatment on account of a protected characteristic. Although he has presented evidence that he complained about the lack of training he received on a particular computer system, and evidence that he thereafter received only one day of training, Chukwurah offers no evidence, apart from his own opinion, that similarly situated employees outside a protected class received more training. Cf. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 19 (2d Cir.1995) (“[Plaintiff] was not entitled to a trial based on his speculative assertions on matters as to which he admitted he had no knowledge and no evidence.”); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (“To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.”). With respect to his claims for retaliatory discharge, Chukwurah asserts that he was subjected to adverse employment actions based, in part, on his decision to join a class action lawsuit against Stop & Shop. The undisputed record evidence, however, indicates that the relevant decision-makers with control over plaintiffs employment had no knowledge of his participation in the class action. Accordingly, Chukwurah has not established a pvima facie case for retaliatory discharge based on his participation in that lawsuit. See Collins v. N.Y. City Transit Auth, 305 F.3d 113, 118 (2d Cir.2002) (“ ‘To make out a prima facie case of retaliation, an employee must show ... that the employer was aware of that activity ....’”) (quoting Manoharan v. Columbia Univ. Coll. of *496 Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). Plaintiff also maintains that his discharge was retaliation for his filing a CHRO complaint in July 2004, 11 months before his eventual termination. Even assuming Chukwurah has established a prima facie case for this claim, he once again fails to come forward with any evidence showing that Stop & Shop’s legitimate, non-retaliatory reason for firing him — his poor performance — was a pretext for retaliation. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 130-31 (2d Cir.1996) (affirming grant of summary judgment on claim for retaliatory discharge where “[defendant came forward with several legitimate reasons for the decision to fire plaintiff,” including complaints about her performance and her inability to take direction from supervisors, and plaintiff “put forth no evidence to show that defendant’s asserted reasons for the [decision] were pretextual.”). CONCLUSION We have considered all of plaintiffs arguments and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED. Footnotes [1] Although McDonnell Douglas concerned the burden and allocation of proof under Title VII, its framework is also applied to claims under 42 U.S.C. § 1981, Hudson v. Int’l Bus. Machs. Corp., 620 F.2d 351, 354 (2d Cir.1980), and the CFEPA, see Brittell v. Dep’t of Corr., 247 Conn. 148, 717 A.2d 1254, 1264 (1998). [2] Our review is hindered by plaintiff's failure to provide citations to the record for many of the factual assertions in his brief, notwithstanding the requirements of Federal Rule of Appellate Procedure 28. See Fed. R.App. P. 28(a)(7) (An appellate brief must contain a “statement of facts relevant to the issues submitted for review with appropriate references to the record.”); cf. Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d Cir.2002) (“Perhaps counsel for Appellant intends that we form an argument for him, by looking into the record to document the ‘facts' posited in his ‘statement of the case,' and then examining various combinations of these facts in the light of the legal doctrines he later mentions. But that is simply not our job, at least in a counseled case.”). Moreover, many of the citations plaintiff does include contain no reference to page numbers in the appendix submitted. See Fed. R.App. P. 28(e) ("References to parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix.”).