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Christopher Broich v. the Incorporated Village of Southampton

February 15, 2012

CHRISTOPHER BROICH, PLAINTIFF-APPELLANT,
v.
THE INCORPORATED VILLAGE OF SOUTHAMPTON, THE BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, MARK EPLEY, INDIVIDUALLY AND AS MAYOR OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, BONNIE M. CANNON, INDIVIDUALLY AND AS TRUSTEE OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, NANCY C. MCGANN, INDIVIDUALLY AND AS TRUSTEE OF THE INCORPORATED VILLAGE OF SOUTHAMPTON,
PAUL L. ROBINSON, INDIVIDUALLY AND AS TRUSTEE OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, LARS KING, INDIVIDUALLY AND AS FORMER CHIEF OF POLICE OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, WILLIAM WILSON, JR., INDIVIDUALLY AND AS CHIEF OF POLICE OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, DEFENDANTS-APPELLEES.



Appeal from a judgment of the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, Judge) entered January 25, 2011.

11-467-cv

Broich v. The Incorporated Village of Southampton

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 a summary order must serve a copy of it on any party not represented by counsel.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 3 on the 15th day of February, two thousand twelve.

PRESENT: JOSE A. CABRANES, CHESTER J. STRAUB, DEBRA ANN LIVINGSTON, Circuit Judges.

AFTER ARGUMENT AND UPON DUE CONSIDERATION, it is hereby ORDERED, 10 ADJUDGED, and DECREED that the judgment of the District Court is AFFIRMED in part AND 11 VACATED in part and the case REMANDED for further proceedings consistent with this 12 SUMMARY ORDER.

13 Plaintiff-appellant Christopher Broich appeals from a judgment of the District Court entered 14 January 25, 2011 granting summary judgment to defendants-appellees on all of Broich's claims. 15 We assume the parties' familiarity with the underlying facts and procedural history. Following our 16 de novo review of the record, we vacate the January 25, 2011 Judgment insofar as it relates to 17 Broich's failure-to-promote claim under 42 U.S.C. § 1981, and affirm the District Court in all other 18 respects.

20 I. The Failure-to-Promote Claims

21 A. The Section 1981 Claim

22 The District Court granted summary judgment, sua sponte and without notice, on Broich's 23 failure to promote claim under 42 U.S.C. § 1981, concluding that "[t]he record is devoid of any 24 direct evidence of racial animus and . . . there is insufficient circumstantial evidence from which a 25 jury can infer that defendants intentionally discriminated against plaintiff on the basis of his race 26 with respect to the failure to promote him in February 2005." Broich v. Inc. Vill. of Southampton, 1 No. 08-cv-553, 2011 WL 284484, at *10 (E.D.N.Y. Jan. 25, 2011). We review a district court's 2 decision to grant summary judgment sua sponte to the defendants de novo, drawing all inferences 3 in favor of the non-moving party. See Schwan-Stabilo Cosmetics GmbH v. Pacificlink Int'l Corp., 4 401 F.3d 28, 31 (2d Cir. 2005). While district courts may in some circumstances grant summary 5 judgment sua sponte without notice, "we have firmly discouraged th[at] practice." Bridgeway Corp. 6 v. Citibank, 201 F.3d 134, 139 (2d Cir. 2000). A district court, before granting summary judgment 7 without notice and an opportunity to be heard, must take care to "determine that the party against 8 whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that 9 there is no genuine issue of material fact to be tried." Priestley v. Headminder, Inc., 647 F.3d 497, 10 504 (2d Cir. 2011) (quoting Schwan-Stabilo Cosmetics, 401 F.3d at 33).

11 Section 1981 "outlaws discrimination with respect to the enjoyment of benefits, privileges, 12 terms and conditions of a contractual relationship, such as employment," Patterson v. Cnty. of 13 Oneida, N.Y., 375 F.3d 206, 224 (2d Cir. 2004); it reads, in relevant part, as follows: 14 All persons within the jurisdiction of the United States shall have the same right in 15 every State and Territory to make and enforce contracts, to sue, be parties, give 16 evidence, and to the full and equal benefit of all laws and proceedings for the 17 security of persons and property as is enjoyed by white citizens, and shall be subject 18 to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and 19 to no other.

20 42 U.S.C. § 1981(a). To establish a claim under 42 U.S.C. § 1981(a), a plaintiff must show "(1) that 21 []he is a member of a racial minority; (2) an intent to discriminate on the basis of race by the 22 defendant; and (3) that the discrimination concerned one or more of the activities enumerated in § 23 1981." Lauture v. IBM, 216 F.3d 258, 261 (2d Cir. 2000).*fn1 A plaintiff's efforts to establish the 1 second element of a § 1981 claim are subject to the same burden-shifting analysis as intentional 2 discrimination claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e 3 et seq. See Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 146 (2d Cir. 1999). 4 Under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 5 U.S. 792 (1973), a plaintiff asserting racial discrimination bears the initial burden of establishing 6 a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 7 (2000). In order to establish a prima facie case of employment discrimination, a plaintiff must 8 demonstrate:

9 (1) that he belonged to a protected class; (2) that he was qualified for the position he 10 held; (3) that he suffered an adverse employment action; and (4) that the adverse 11 employment action occurred under circumstances giving rise to an inference of 12 discriminatory intent.

13 Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009) (quoting Holcomb v. Iona Coll., 521 F.3d ...


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