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finding that an employer could not be held liable based on the joint employer theory "because there is no evidence that Adecco either knew or should have known about any of the alleged discrimination" (citing AT&T v. NLRB, 67 F.3d 446, 451 (2d Cir. 1995))
Summary of this case from Crump v. U.S. Dept. of NavyOpinion
No. 09-2573-cv.
April 27, 2010.
Appeal from a June 9, 2009 judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.
Jose R. Lima, Bronx, NY, pro se.
Matthew A. Steinberg, Diane Windholz, Jackson Lewis LLP, New York, NY, for Defendant-Appellee.
PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY, Circuit Judges.
The Honorable Rosemary S. Pooler, originally scheduled to be a member of the panel hearing this appeal, was unable to participate. The appeal has been decided by the remaining two members of the panel, who are in agreement. See 2d Cir. Local Rules, Internal Operating Procedure E(b).
SUMMARY ORDER
Plaintiff-appellant Jose Lima ("plaintiff or "Lima"), pro se, appeals from the District Court's order granting summary judgment in favor of defendant-appellee Adecco and dismissing his complaint against Platform Learning, Inc. ("Platform"), in his action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. We assume the parties' familiarity with the remaining facts, procedural history, and issues on appeal.
We review de novo the District Court's decision to grant summary judgment and, in the course of that review, we resolve ambiguities and draw all permissible factual inferences in favor of the nonmoving party. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008); Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157, 160 (2d Cir. 1999). We will affirm the grant of summary judgment by the District Court if the record indicates that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Pilgrim v. Luther, 571 F.3d 201, 204 (2d Cir. 2009) (internal quotation marks omitted). In the course of our evaluation, we afford plaintiff the "special latitude" that we give to pro se plaintiffs, see, e.g., Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998).
After conducting an independent review of the record and case law, substantially for the same reasons stated by the District Court, we conclude that Adecco cannot be considered plaintiffs employer under the "single employer" doctrine. See Arculeo v. On-Site Sales Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005). We also agree with the District Court that even if Adecco and Platform could be considered a "joint employer," Adecco could not be held liable to plaintiff based on that legal theory because there is no evidence that Adecco either knew or should have known about any of the alleged discrimination. See generally ATT v. NLRB, 67 F.3d 446, 451 (2d Cir. 1995). Further, the record is replete with evidence of legitimate, non-discriminatory reasons for each of the employment actions taken with respect to Lima. Accordingly, we conclude that the District Court properly granted summary judgment in favor of Adecco.
The District Court dismissed plaintiffs claims against Platform for failure to effect service of process. As noted above, however, the record also establishes that there were legitimate, nondiscriminatory, and unrebutted reasons for plaintiffs termination. We may affirm on any basis supported by the record, and we therefore hold that the judgment in Platform's favor was properly entered because a rational trier of fact could not conclude, based on this record, that Platform violated Title VII by terminating plaintiff.
CONCLUSION
We have considered each of plaintiffs arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.