Kirkland v. Cablevision Systems, No. 13-3625 (2d Cir. 2014)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Second Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Second Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Plaintiff filed suit against his former employer, Cablevision, alleging claims of race discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. 2000e et seq. On appeal, plaintiff challenged the district court's grant of summary judgment for Cablevision on both claims and the district court's dismissal of plaintiff's pendant state law claims. The court concluded that the district court overlooked evidence raising a genuine factual dispute as to whether Cablevision's justifications for firing plaintiff were a pretext for race discrimination and retaliation, and a rational jury could find that Cablevision discriminated against plaintiff and fired him in violation of Title VII. Accordingly, the court vacated and remanded for trial.
Download PDF
13 3625 cv Kirkland v. Cablevision Systems 1 9 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: June 19, 2014 Decided: July 25, 2014) Docket No. 13 3625 cv 10 11 GARRY KIRKLAND, Plaintiff Appellant, v. CABLEVISION SYSTEMS, Defendant Appellee, Before: CALABRESI, LYNCH, and LOHIER, Circuit Judges. Appeal from the orders, entered September 30, 2012 and August 23, 2013, of the United States District Court for the Southern District of New York (Preska, C.J.) granting summary judgment to Defendant Appellee Cablevision Systems on pro se Plaintiff Appellant Garry Kirkland s Title VII discrimination claims. Because Kirkland proffered adequate evidence that, if credited by a jury, could support a favorable verdict on his Title VII discrimination and retaliation claims, we VACATE the judgment of the District Court and REMAND for proceedings consistent with this opinion. 2 3 4 5 6 7 8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 GARRY KIRKLAND, New York, N.Y., pro se. 1 JOSEPH A. NUCCIO (RENà M. JOHNSON, on the brief) Morgan, Lewis & Bockius LLP, Princeton, N.J., for Defendant Appellee. 1 2 3 4 7 8 PER CURIAM: 5 6 9 Pro se Plaintiff Appellant Garry Kirkland appeals from two decisions by 10 the District Court (Preska, C.J.) granting Defendant Appellee Cablevision 11 Systems ( Cablevision ) summary judgment and dismissing Kirkland s Title VII 12 discrimination and retaliation complaint. According to Kirkland, who was, in 13 2008, Cablevision s only African American Area Operations Manager ( AOM ), 14 his former employer discriminated against him and ultimately fired him based 15 on race. Kirkland also argues that Cablevision retaliated against him for 16 repeatedly complaining to Human Resources about racial discrimination. 17 The District Court granted Cablevision summary judgment on Kirkland s 18 Title VII race discrimination claims and denied it summary judgment on his 19 retaliation claims. Kirkland v. Cablevision Sys., No. 09 cv 10235, 2012 WL 4513499, 20 at *4 (S.D.N.Y. Sept. 30, 2012). On motion for reconsideration, the District Court 21 granted Cablevision summary judgment on Kirkland s retaliation claims and 2 1 declined to exercise jurisdiction over his pendent state law claims. Kirkland v. 2 Cablevision Sys., No. 09 cv 10235, 2013 WL 4509644, at *3 (S.D.N.Y. Aug. 23, 2013). 3 In awarding Cablevision summary judgment, the District Court 4 overlooked evidence raising a genuine factual dispute as to whether 5 Cablevision s justifications for firing Kirkland were a pretext for race 6 discrimination and retaliation. A rational jury, viewing the disputed evidence in 7 Kirkland s favor, could find that Cablevision discriminated against Kirkland and 8 fired him in violation of Title VII. Summary judgment is, therefore, 9 inappropriate. 10 We VACATE the District Court s orders granting Cablevision summary 11 judgment on Kirkland s discrimination and retaliation claims and dismissing 12 Kirkland s pendent state law claims, and REMAND for trial. 13 DISCUSSION 14 We assume the parties familiarity with the facts and proceedings below. 15 This court reviews grants of summary judgment de novo. Terry v. 16 Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). Summary judgment is appropriate only 17 if the movant shows that there is no genuine dispute as to any material fact and 18 the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We 3 1 review the evidence and draw all rational inferences in the non movant s favor. 2 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When a plaintiff proceeds pro se, the court must construe his submissions 3 4 liberally and interpret them to raise the strongest arguments that they suggest. 5 Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Only if it appears beyond 6 doubt that the plaintiff can prove no set of facts in support of his claim which 7 would entitle him to relief, will the court affirm summary judgment. Terry, 336 8 F.3d at 137 (internal quotation marks and alterations omitted) (vacating, in part, 9 a grant of summary judgment). 10 Kirkland s Title VII race discrimination and retaliation claims are subject to 11 the McDonnell Douglas burden shifting standard.1 See Gorzynski v. JetBlue Airways 12 Corp., 596 F.3d 93, 106, 110 (2d Cir. 2010) (citing McDonnell Douglas Corp. v. 13 Green, 411 U.S. 792, 802 (1973)). To state a prima facie case of race discrimination, 14 a plaintiff must proffer evidence that (1) he belongs to a protected group; (2) he 15 was qualified for his position; (3) his employer took an adverse action against 16 him; and (4) the adverse action occurred in circumstances giving rise to an Kirkland does not appeal the District Court s dismissal of his cross motion for summary judgment or its grant of summary judgment against him on his disparate treatment claim based on pay. Accordingly, we find those claims to be abandoned. 1 4 1 inference of race discrimination. See Terry, 336 F.3d at 138. To state a prima facie 2 case of retaliation under Title VII, a plaintiff must proffer evidence that he 3 engaged in a protected activity, such as complaining about race discrimination, 4 and that his employer took an adverse action in retaliation. See Gorzynski, 596 5 F.3d at 110. 6 Once an employee makes a prima facie case of either discrimination or 7 retaliation, the burden shifts to the employer to give a legitimate, non 8 discriminatory reason for its actions. See McDonnell Douglas, 411 U.S. at 802. If 9 the employer does so, the burden then shifts back to the plaintiff to show that the 10 employer s explanation is a pretext for race discrimination or retaliation. Id. 11 With respect to a discrimination claim, once the [employer] has made a showing 12 of a neutral reason for the complained of action, to defeat summary judgment . . . 13 the [employee s] admissible evidence must show circumstances that would be 14 sufficient to permit a rational finder of fact to infer that the [employer s] 15 employment decision was more likely than not based in whole or in part on 16 discrimination. Terry, 336 F.3d at 138 (internal quotation marks omitted). With 17 respect to a retaliation claim, the employee s admissible evidence must show 18 that the unlawful retaliation would not have occurred in the absence of the 5 1 alleged wrongful action or actions of the employer. Kwan v. Andalex Grp. LLC, 2 737 F.3d 834, 835 (2d Cir. 2013) (internal quotation marks omitted) (quoting Univ. 3 of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)). While the District Court recognized that Kirkland had stated prima facie 4 5 cases of race discrimination and retaliation, it held that Kirkland lacked sufficient 6 evidence of pretext to rebut Cablevision s seemingly legitimate, non 7 discriminatory reasons for firing him primarily, poor performance reviews and 8 affidavits from three regional managers whom Kirkland supervised. We disagree with the District Court s conclusions. 9 The record contains enough evidence that, if credited, could support a 10 11 jury s finding that Cablevision s rationale for Kirkland s treatment and eventual 12 termination was a pretext for illegal race discrimination and retaliation.2 For The District Court calculated the actionable period under Title VII as beginning April 19, 2008 (300 days prior to Kirkland s EEOC charge, which was marked received by that office on February 13, 2009). See Kirkland v. Cablevision Sys., No. 09 cv 10235, 2011 WL 4908367, at *11 (S.D.N.Y. Oct. 14, 2011) (recommendation from Magistrate Judge Fox, adopted by the District Court). We note that the record also includes an earlier completed EEOC questionnaire, dated January 13, 2009. See Appellees Special Appendix ( S.A. ) 753. Kirkland testified that he first submitted a discrimination charge to the EEOC on December 5, 2008 the day after he was fired, S.A. 341 and that the EEOC documents dated 2009 are amendments to his original complaint, 2 6 1 example, Kathryn Nivins, an Asian American female whom Robert Cockerill 2 hired to replace Kirkland, testified that Cockerill explained Kirkland s 3 termination by criticizing Kirkland s failure to discipline one of his regional 4 managers (all of whom were African American). S.A. 320 21. Nivins testified 5 that Cockerill told her that Cockerill ha[d] come to learn that they don t know 6 how to police each other. S.A. 321. Nivins also testified that, during her 7 interview, Cockerill gave her an overview of these managers strengths and 8 weaknesses, explaining that his opinion was that [the regional office] could 9 lighten up a bit. S.A. 321. 10 11 12 Other examples of proffered evidence, which could support a finding of pretext, if at least several were believed, follow: ï · Kirkland swore that when he and the other AOMs the rest of 13 whom were white gave presentations in September 2008 or 2009, 14 Cockerill cut Kirkland s time short and singled out Kirkland s 15 presentation for heavy[] criticism, including Cockerill s assertion 16 that Kirkland s presentation used a colored background and [that] S.A. 928, 1235. We set aside the question of whether an earlier date might commence the preceding actionable period under Title VII. Limiting our review to the actionable period considered by the District Court, we find sufficient evidence for reversal. 7 1 there is no room for color in a business presentation and how 2 white was better than color. S.A. 757, 1155 56. 3 ï · Kirkland swore that Cockerill and Human Resources manager Isaac 4 Fennell falsified and back dated documents that they used to 5 support Kirkland s poor performance reviews to cover up the real 6 reason for . . . firing [him]. S.A. 927 28. See also S.A. 86, 1135. 7 Kirkland s claim is made plausible by Nivins s testimony that 8 Cockerill asked her to gather negative information on Kirkland 9 [r]ight after Cablevision learned that Kirkland had sued. S.A. 321 10 22, 324. Nivins also claimed that when she told Cockerill that she 11 didn t have that information for him, Cockerill turned against her. 12 S.A. 322. 13 ï · Handwritten notes from Human Resources executive Sue Crickmore 14 include the following statement about three of Kirkland s regional 15 managers: These three not receptive to coaching. S.A. 574 (notes 16 dated November 2008). The same three managers later submitted 17 affidavits criticizing Kirkland in support of Cablevision s summary 8 1 judgment motion, which Kirkland testified [he] wouldn t be 2 surprised if Cockerill had falsified. S.A. 1135. 3 ï · In August 2008, Kirkland reminded Fennell that he had yet to 4 respond to [Kirkland] about [his February 2008] complaints of 5 retaliation and race discrimination. S.A. 926, 929. See also S.A. 330 6 (describing a February 2008 meeting with Fennell), 338 39, 415. 7 Kirkland testified that, the day after his February 2008 meeting, 8 Isaac [Fennell] sent me the email saying he want[ed] to follow up 9 on my issues . . . and I never heard from him again. S.A. 1133, 423. 10 See also S.A. 235 (showing that an electronic meeting request, sent 11 from Fennell to Kirkland, suggested February 7, 2008 to discuss 12 H[uman]r[esources] Confidential: Employee Concern ). 13 ï · During a November 10, 2008 meeting with Crickmore, Kirkland 14 again complained that no one had followed up with him about his 15 February 2008 allegations of race discrimination, which Kirkland 16 blamed for his poor performance review. S.A. 420 21, 337 39. 17 Crickmore s notes from this meeting read: G[arry] K[irkland] [:] Put 18 in a response re: review and never heard back. S.A. 574. 9 1 ï · Crickmore s notes also could be read to support Kirkland s 2 testimony that he complained to her directly about Cockerill 3 treating [him] differently from the white AOMs, by, for example, 4 offering to deliver a warning to Kirkland s regional managers in 5 Kirkland s stead. S.A. 420. Crickmore s notes from November 11, 6 2008, entitled Conversation with Isaac [Fennell] + Bob [Cockerill], 7 ask, Did Bob and Isaac offer[] to all AOM[s] to administer warning 8 to the[ir regional] managers? S.A. 318. 9 ï · Fennell s report and handwritten notes from the December 4, 2008 10 meeting at which Fennell and Cockerill fired Kirkland include 11 Kirkland s statement that [t]his appears to be retaliating after [his 12 November 2008] meeting with Sue Crickmore. S.A. 268, 270. 13 ï · Nivins testified that she believed that Cockerill hired her, despite 14 her lack of qualifications, because Cockerill wished to us[e] Nivins 15 as cover because she ha[d] a black fiancé and [she] c[ould] fire 16 black people in [Kirkland s former] region. S.A. 324 25, 1101. 17 ï · Nivins also testified that she believed Cockerill was racist, a 18 complaint she voiced to Fennell. S.A. 323. Nivins testified that 10 1 Fennell, in response, blankly told [her] that Bob [Cockerill] is 2 known as the KKK without the hood. S.A. 323 24. 3 A jury might credit all of this proffered evidence, some of it, or none at all. 4 But that is left for the jury to decide at trial. Rivera v. Rochester Genesee Reg l. 5 Transp. Auth., 743 F.3d 11, 21 (2d Cir. 2012) (vacating, in part, summary judgment 6 for employer). And if at least some of this evidence is believed by a jury, that 7 jury could also conclude that, despite Kirkland s negative performance reviews, 8 his firing was more likely than not based in whole or in part on discrimination, 9 Terry, 336 F.3d at 138 (internal quotation marks omitted), and that the unlawful 10 retaliation would not have occurred but for the alleged wrongful actions. CONCLUSION 11 12 We vacate the orders of the District Court granting Cablevision summary 13 judgment on Kirkland s Title VII race discrimination and retaliation claims and 14 dismissing his pendent state law claims. The case is remanded for proceedings 15 consistent with this opinion. 11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
