Summary
affirming grant of summary judgment in favor of defendant-employer, noting "[t]he ultimate burden of persuasion is always on the plaintiff, who must demonstrate that the employer's action was prompted by an impermissible motive"
Summary of this case from Timberlake v. New York Presbyterian HospitalOpinion
No. 08-2124-cv.
May 8, 2009.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED.
Nadirah I. Ahmed, New York, N.Y., pro se.
Drake A. Colley, Assistant Corporation Counsel (Edward F.X. Hart, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y., for Appellee.
Plaintiff-Appellant Nadirah I. Ahmed, pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Preska, J.), granting summary judgment to Defendant-Appellee New York City Health and Hospital Corporation ("HHC") on Ahmed's employment discrimination claims. We assume the parties' familiarity with the underlying facts of the case, its procedural history, and the scope of the issues presented on appeal.
We review orders granting summary judgment de novo, assessing whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. See Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). A plaintiff claiming discrimination in violation of Title VII first must establish a prima facie case of such discrimination. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment decision. Id., Once the employer has met this burden, the burden shifts back to the plaintiff to demonstrate that the nondiscriminatory reason was merely pretext for discrimination. Id., at 804-05, 93 S.Ct. 1817. The ultimate burden of persuasion is always on the plaintiff, who must demonstrate that the employer's action was prompted by an impermissible motive. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511-12, 518, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
Here, even assuming arguendo that Ahmed established a prima facie case of gender and race discrimination, HHC stated several non-discriminatory reasons for the adverse employment actions taken against Ahmed, including her consistent absenteeism, her failure to follow laboratory rules and procedures, and her inability to get along with coworkers since she was hired in 1998. Although Ahmed disputes the accuracy and fairness of her performance evaluations, she has provided no evidence that the reasons cited by HHC for her negative performance evaluations and termination were pretextual. Thus, Ahmed failed to satisfy her burden of raising a jury question on the issue of pretext. See St. Mary's Honor Ctr., 509 U.S. at 511-12, 518, 113 S.Ct. 2742.
To the extent Ahmed is trying to assert new claims that she was subjected to (1) discrimination based on her national origin and religion; (2) sexual harassment; and (3) a hostile work environment, we note that we generally do not consider issues raised for the first time on appeal. See Singleton v. Wulff 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005). Moreover, Ahmed has not asserted manifest injustice and has provided no explanation for why she did not raise these claims below. As there is no basis for concluding that obvious injustice will result from our disregarding these new claims, we decline to consider them. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir. 1990).
We have reviewed Ahmed's remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the District Court is AFFIRMED.