Germain v. Sephardic Nursing Home, (2nd Cir. 2008)

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06-5609-cv

Germain v. Sephardic Nursing Home

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO

SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS

COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF

OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN

W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL

APPENDIX OR BE ACCOM PANIED BY THE NOTATION: "(SUM M ARY ORDER)." A PARTY CITING

A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE

PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY

COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE

W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE

AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF

THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE

REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE

ORDER W AS ENTERED.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 17th day of July, two thousand and eight.

Present: ROSEMARY S. POOLER,

REENA RAGGI,

Circuit Judges,

DAVID G. TRAGER,*

District Judge.

RICHARD GERMAIN,

Plaintiff-Appellant,

v. (06-5609-cv)

SEPHARDIC NURSING HOME,

Defendant-Appellee.

Appearing for Appellant: Richard Germain, pro se, Irvington, NJ.

Appearing for Appellee: Jeffery A. Meyer, Kaufman Dolowich & Voluck, LLP, Woodbury, NY.

Appeal from the United States District Court for the Eastern District of New York (Cogan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the judgment of the District Court is AFFIRMED.

Richard Germain appeals from a judgment of the United States District Court for the Eastern District of New York (Cogan, J.), entered on November 17, 2006, granting defendant's motion for summary judgment. We review a district court's grant of summary judgment de novo.

"All evidence submitted on the motion is to be construed in the manner most favorable to the nonmoving party." Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir. 2004).

Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Germain presented no evidence that would give rise to an inference that his termination by Sephardic Nursing Home was the result of discrimination on the basis of his membership in a protected group. Since there is no evidence that the hurtful remarks Germain recounts were made by people who were responsible for terminating him or who were consulted by the decision-makers, they do not tend to show discriminatory animus on the part of the decisionmakers. See Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992). Moreover, the District Court correctly held that Sephardic established a non-discriminatory basis for its decision to terminate Germain, who had been disciplined on numerous occasions for acts of insubordination and absenteeism.

Finally, Germain has not established a prima facie case of retaliation. He did not establish that Sephardic was aware of any 1998 EEOC complaint, and his 2005 EEOC complaint was filed after he was terminated.

The judgment of the District Court is affirmed.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

* The Honorable David G. Trager, United States District Judge for the Eastern District of New York, sitting by designation.

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