         11-143-cv
         Tanvir v. N.Y.C. Health & Hosp. Corp.

                                 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 16th day of May, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10
11
12
13       SHAHID TANVIR,
14
15                                     Plaintiff-Appellant,
16
17                      -v.-                                                     11-143-cv
18
19       NEW YORK CITY HEALTH & HOSPITALS CORPORATION,
20
21                                     Defendant-Appellee.*
22
23
24       FOR APPELLANT:                SHAHID TANVIR, pro se, Elmwood Park, NJ.
25
26       FOR APPELLEE:                 Ronald E. Sternberg (Leonard Koerner, on
27                                     the brief), for Michael A. Cardozo,
28                                     Corporation Counsel of the City of New
29                                     York, New York, NY.
30

                *
              The Clerk of the Court is respectfully directed to
         amend the caption to conform to the above.
1         Appeal from the United States District Court for the
2    Southern District of New York (Hellerstein, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the district court be

6    AFFIRMED.

7        Appellant Shahid Tanvir, proceeding pro se, appeals the

8    district court’s judgment in which it granted summary

9    judgment in favor of the defendant, New York City Health &

10   Hospitals Corporation ("HHC"), with respect to his

11   employment discrimination claims brought pursuant to Title

12   VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.

13   §§ 2000e to 2000e-17, and the Age Discrimination in

14   Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634.     We

15   assume the parties’ familiarity with the underlying facts,

16   the procedural history of the case, and the issues on

17   appeal.

18   Administrative Exhaustion of Tanvir's ADEA Claim

19       "Exhaustion of administrative remedies through the EEOC

20   is an essential element of the Title VII and ADEA statutory

21   schemes and, as such, a precondition to bringing such claims

22   in federal court."   Legnani v. Alitalia Linee Aeree

23   Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per

24   curiam) (internal quotation marks omitted).   However, a

                                   2
1    claim that was not presented to the EEOC may still be

2    pursued where the claim is "reasonably related" to the

3    claims that were brought before the agency.   See id.

4    (internal quotation marks omitted).   Tanvir did not present

5    his age discrimination claims to the EEOC, and he has not

6    established that his age discrimination claims are

7    "reasonably related" to the claims before the agency.    We

8    therefore affirm the district court’s decision to dismiss

9    Tanvir's ADEA claims based on a failure to exhaust

10   administrative remedies.

11   Failure-to-Promote and Retaliation Claims

12       To establish a prima facie case of disparate treatment

13   with respect to a failure-to-promote claim under Title VII,

14   a plaintiff must show that: "(1) [he] is a member of a

15   protected class; (2) [he] applied and was qualified for a

16   job for which the employer was seeking applicants; (3) [he]

17   was rejected for the position; and (4) the position remained

18   open and the employer continued to seek applicants having

19   the plaintiff's qualifications."   Estate of Hamilton v. City

20   of New York, 627 F.3d 50, 55 (2d Cir. 2010) (quotation marks

21   omitted).   To establish a prima facie claim of retaliation

22   under Title VII, a plaintiff must show that: (1) he engaged


                                   3
1    in a protected activity; (2) the employer was aware of the

2    protected activity; (3) the employer took adverse employment

3    action against the plaintiff; and (4) a causal connection

4    exists between the protected activity and the adverse

5    action.    See Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir.

6    2003).    A plaintiff cannot establish a prima facie case of

7    discrimination under Title VII based on "purely conclusory

8    allegations of discrimination, absent any concrete

9    particulars."    See Meiri v. Dacon, 759 F.2d 989, 998 (2d

10   Cir. 1985).

11       Under both types of claims, once the plaintiff has

12   presented a prima facie case, the burden of production

13   shifts to the defendant to articulate, through the

14   introduction of admissible evidence, a legitimate,

15   nondiscriminatory reason for the adverse employment action.

16   See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

17   (1973); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450

18   U.S. 248, 254-55 (1981).   Once the employer has met this

19   burden, the burden shifts back to the plaintiff to

20   demonstrate that the nondiscriminatory reason was merely a

21   pretext for discrimination.    See Burdine, 450 U.S. at 256.

22


                                    4
1        The record fully supports the district court’s finding

2    that HHC met its burden of articulating legitimate,

3    nondiscriminatory reasons for the adverse employment actions

4    alleged in Tanvir's complaint, and that Tanvir had not met

5    his burden of showing that the reasons provided by HHC were

6    pretextual in nature and that discriminatory animus was the

7    real reason for the actions.     Accordingly, we also affirm

8    the district court’s grant of summary judgment in HHC’s

9    favor with respect to Tanvir's Title VII failure-to-promote

10   and retaliation claims.

11   Hostile Work Environment Claim

12       Though not expressly addressed by the district court,

13   we determine that summary judgment is also proper on

14   Tanvir’s hostile work environment claim.       See Chase

15   Manhattan Bank, N.A. v. Am. Nat’l Bank & Trust Co. of

16   Chicago, 93 F.3d 1064, 1072 (2d Cir. 1996).      To establish a

17   hostile work environment claim, a plaintiff must

18   demonstrate, among other things, that his workplace was

19   “permeated with discriminatory intimidation, ridicule, and

20   insult that [was] sufficiently severe or pervasive to alter

21   the conditions of the victim’s employment and create an

22   abusive working environment."       Harris v. Forklift Sys.,


                                     5
1    Inc., 510 U.S. 17, 21 (1993) (citation and internal

2    quotation marks omitted).

3        Tanvir’s hostile work environment claim appears to be

4    based on an aggregation of all the actions alleged in his

5    failure-to-promote and retaliation claims. He has failed to

6    demonstrate that any of the actions were discriminatory in

7    nature.    Additionally, he has not suggested that he was

8    exposed to race- or national origin-based comments (positive

9    or negative) in his workplace.     Based on the lack of

10   evidence supporting a finding that his workplace environment

11   was one characterized by "discriminatory intimidation,

12   ridicule, and insult" of a "severe or pervasive" nature,

13   summary judgment is appropriate with respect to this claim

14   as well.

15       We have considered Tanvir’s remaining arguments and

16   find them to be without merit.     Accordingly, we AFFIRM the

17   judgment of the district court.

18
19                                FOR THE COURT:
20                                Catherine O’Hagan Wolfe, Clerk
21
22




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