Filed: Jun. 03, 2011
Latest Update: Feb. 21, 2020
Summary: 10-3179-cv Baguer v. Spanish Broadcasting Sys., Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 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 NO
Summary: 10-3179-cv Baguer v. Spanish Broadcasting Sys., Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 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 NOT..
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10-3179-cv
Baguer v. Spanish Broadcasting Sys., Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of June, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judge,
10 JED S. RAKOFF,*
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 MICHAEL BAGUER,
15
16 Plaintiff-Appellant,
17
18 -v.- 10-3179-cv
19
20 SPANISH BROADCASTING SYSTEMS, INC.,
21
22 Defendant-Appellee,
23 - - - - - - - - - - - - - - - - - - - -X
*
The Honorable Jed S. Rakoff, of the United States
District Court for the Southern District of New York,
sitting by designation.
1
1 FOR APPELLANT: Jerry S. Goldman
2 Anderson Kill & Olick, P.C.
3 New York, NY
4
5 FOR APPELLEES: William C. Zifchak
6 Carlos L. Lopez
7 Kaye Scholer LLP
8 New York, NY
9
10
11 Appeal from two judgments by the United States District
12 Court for the Southern District of New York (Sullivan, J.),
13 one denying Appellant’s motion to supplement the record, and
14 the other granting Appellee’s motion for summary judgment
15 and entering judgment for Appellee on all claims.
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18 AND DECREED that the district court’s judgments are
19 AFFIRMED.
20
21 Michael Baguer appeals from an order by the district
22 court denying his motion to supplement the record and from
23 an order by the district court granting summary judgment to
24 Spanish Broadcasting Systems, Inc. (“SBS”) on all of
25 Baguer’s claims, including those under the Civil Rights Act
26 of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the
27 Age Discrimination in Employment Act of 1967, 29 U.S.C. §
28 621, et seq. (“ADEA”). We assume the parties’ familiarity
29 with the underlying facts, the procedural history, and the
30 issues presented for review.
31
32 We review a district court’s denial of a motion to
33 supplement the record for abuse of discretion. See Allied
34 Mar., Inc. v. Descatrade SA, 620 F.3d 70, 76 (2d Cir. 2010).
35 Likewise, we review a district court’s denial of an
36 evidentiary hearing for abuse of discretion. Zappia Middle
37 E. Constr. Co. v. Emirate of Abu Dhabi,
215 F.3d 247, 253
38 (2d Cir. 2000). We review de novo a district court’s grant
39 of summary judgment for the defendant. Aulicino v. N.Y.C.
40 Dep’t of Homeless Servs.,
580 F.3d 73, 79 (2d Cir. 2009).
41
42 A district court abuses its discretion regarding a
43 discovery request only “when the action taken was
44 improvident and affected the substantial rights of the
2
1 parties.” Wills v. Amerada Hess Corp., 379 F.3d 32, 51 (2d
2 Cir. 2004) (internal quotation marks omitted). Baguer made
3 neither showing in his appeal to this Court. Moreover, the
4 district court did not abuse its discretion in declining to
5 hold a hearing on the matter because the insufficiency of
6 Baguer’s motion was clear on the record.
7
8 The district court granted summary judgment to SBS on
9 Baguer’s ADEA claim because it concluded that Baguer failed
10 to establish a prima facie case of discrimination under the
11 McDonnell Douglas framework. See McDonnell Douglas Corp. v.
12 Green,
411 U.S. 792, 802 (1973) (establishing burden-
13 shifting framework for Title VII claims); D’Cunha v.
14 Genovese/Eckerd Corp.,
479 F.3d 193, 195-96 (2d Cir. 2007)
15 (applying McDonnell Douglas framework to ADEA claims). The
16 district court concluded that Baguer established a prima
17 facie case of race discrimination, but it still granted
18 summary judgment to SBS on Baguer’s Title VII claim because
19 Baguer failed to raise a genuine issue of fact as to the
20 validity of SBS’s proffered nondiscriminatory reason for
21 terminating Baguer. While this Circuit has previously
22 suggested that a difference in age of eight years or can be
23 sufficient to raise an inference of age discrimination, see
24 e.g., D’Cunha v. Genovese/Eckerd Corp.,
479 F.3d 193, 195
25 (2d Cir. 2007) (per curiam), we need not resolve whether
26 Baguer has established such a prima facie case here because
27 both his Title VII and ADEA claims are doomed by his failure
28 to rebut the nondiscriminatory rationale SBS articulated for
29 terminating him.
30
31 SBS produced testimonial and documentary evidence of
32 Baguer’s poor job performance. Baguer failed to refute this
33 evidence and also failed to produce any non-conclusory
34 evidence (circumstantial or direct) that would support a
35 rational finding that “more likely than not” discrimination
36 was the real reason for his termination. Weinstock v.
37 Columbia Univ.,
224 F.3d 33, 42 (2d Cir. 2000). We
38 therefore affirm the district court’s grant of summary
39 judgment to SBS on Baguer’s Title VII and ADEA claims.
40
41 The district court granted summary judgment to SBS on
42 all of Baguer’s state law claims. While Baguer mentions
43 these claims in the last two pages of his brief, he fails to
44 make any meaningful argument that the district court erred
3
1 in rejecting them on summary judgment. To the extent that
2 his appeal on these claims is not resolved by our affirming
3 the district court’s grant of summary judgment to SBS on his
4 federal claims, he waived them by insufficiently arguing
5 them in his brief. Design Strategy, Inc. v. Davis, 469 F.3d
6 284, 300 (2d Cir. 2006) (“Issues not sufficiently argued in
7 the briefs are considered waived and normally will not be
8 addressed on appeal.” (internal quotation marks omitted)).
9 We therefore affirm the district court’s grant of summary
10 judgment to SBS on the remainder of Baguer’s claims.
11
12 For the foregoing reasons, the judgments of the
13 district court are hereby AFFIRMED.
14
15
16 FOR THE COURT:
17 CATHERINE O’HAGAN WOLFE, CLERK
18
4
