Balk v. N.Y. Inst. Technology, 16-984-cv
| Decision Date | 23 March 2017 |
| Docket Number | 16-984-cv |
| Parties | DENNIS BALK, Plaintiff-Appellant, v. NEW YORK INSTITUTE OF TECHNOLOGY, Defendant-Cross-Claimant-Appellee, MOHAMED YOSSRY HUSSEIN, INFOTEC CORPORATION, Defendants-Cross-Defendants. |
| Court | U.S. Court of Appeals — 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of March, two thousand seventeen.
RIDLEY M. WHITAKER, Law Offices of Ridley M. Whitaker, New York, New York.
FOR DEFENDANT-CROSS-CLAIMANT-APPELLEE:
DOUGLAS P. CATALANO (Stefanie R. Munsky, on the brief), Clifton Budd & DeMaria, LLP, New York, New York.
Appeal from opinions and orders of the United States District Court for the Eastern District of New York (Scheindlin, J.).1
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the opinions and orders of the district court are AFFIRMED.
Plaintiff-appellant Dennis Balk appeals from the opinions and orders of the district court entered September 16, 2015, November 9, 2015, and March 11, 2016, in favor of defendant-appellee New York Institute of Technology ("NYIT"), and defendants Infotec Corporation ("Infotec") and Mohammed Yossry Hussein, dismissing his claims of discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and his state law breach of contract and fraud claims.2 We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.
Balk -- a white, non-Muslim, American citizen -- began teaching at NYIT's Bahrain campus in June 2006 pursuant to a one-year employment contract. Infotec provided security and other administrative services to NYIT Bahrain and Hussein was the president of Infotec.3 On April 3, 2007, NYIT renewed Balk's teaching contract for another year, pursuant to which he would continue teaching at NYIT Bahrain until May 31, 2008.
On February 18, 2008, Balk met in Bahrain with a group of students who were planning to travel to New York City. Balk made certain comments during this meeting that led to two of the students filing a formal complaint with the NYIT administration on February 24, 2008. The students alleged that Balk made anti-Islamic and offensive remarks. The students stated they "were surprised and shocked with the words that Professor Dennis Balk said as they were extremely rude, humiliating,disrespectful and full of clear racism." App. 175. The students stated that "[Balk] gave examples about democracy that insults our religious beliefs and as a professor he should realize that the words he said about our Prophet Mohammed peace be upon him are very sensitive and will never be the definition of democracy." Id. On his side, Balk acknowledged that he admonished the students that "when they go to the west to be able to understand why people might feel uncomfortable with them," and described a "hypothetical walk down the street where you would pass a mosque or a church, I remember thinking maybe it was Episcopalian where there was a gay congregation and you might see within that church their iconography, their words on the wall where prophets and Gods would be gay." Id. at 735, 741-42.
As he acknowledged in contemporary emails to a colleague, Balk began to fear for his physical safety. In a February 26, 2008 email, he told another faculty member at NYIT: "trying to remain rational, middle of the night . . . I can't sleep, am concerned about my physical safety." Id. at 190. In another email on February 28, 2008, he said "I am to re-apologize [to the students], this time with more feeling . . . concern for my safety is very much an issue." Id. at 197.
On the evening of March 1, 2008, Balk left Bahrain, moving to Jordan. On March 1, 2008 (a few hours before he left) and March 6, 2008, two articles appeared in Bahraini newspapers reporting that an unnamed professor at a private university had published a cartoon of the Prophet Mohammed on his personal website. While there isno evidence in the record that Balk did any such thing, he has acknowledged that it was widely believed that the articles were referring to him. On March 18, 2008, NYIT administrators determined that Balk could not return to Bahrain to complete the remainder of his second teaching term and, around this time, Balk returned to New York. NYIT paid Balk for the remainder of his contract but did not renew his contract for a third term or offer Balk a position at any of its other campuses.
Balk alleges that he was forced to abandon his teaching position at NYIT Bahrain and that his contract was not renewed for a third term because of his race, religion, and national origin. Specifically, Balk alleges that NYIT discriminated against him by deferring to the discriminatory animus of its Muslim students and faculty members.
"We review de novo the district court's grant of summary judgment, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in [his] favor." Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). A district court may grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We ask whether "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). On appeal, Balkargues the district court erred in granting summary judgment on his discrimination, breach of contract, and fraud claims.
We generally analyze claims of race, religion, and national origin discrimination, where there is no direct or overt evidence of discriminatory conduct, under the McDonnell Douglas burden-shifting framework. See McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). Under that framework, once the plaintiff demonstrates a prima facie case of discrimination, the burden shifts to the defendant to provide a legitimate, non-discriminatory reason for its actions. Ruiz v. Cty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010). If the defendant makes such a showing, "the burden returns to the plaintiff to show that the real reason for plaintiff's termination was his race and national origin." Id. The plaintiff must come forward with "not simply 'some evidence,' but 'sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action." Weinstock, 224 F.3d at 42 (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)).
Here, even assuming that Balk demonstrated a prima facie case of discrimination, NYIT provided legitimate, non-discriminatory reasons for its actions: itremoved Balk from Bahrain because it had become unsafe for him to remain there, and it did not provide Balk with a new contract because there were no positions available for him in the United States. Balk did not present sufficient evidence to support a rational finding that NYIT's stated reasons were false, and that more likely than not discrimination was "the real reason" for its employment actions.
On the record before the district court, no reasonable jury could have found that NYIT's stated concern for Balk's safety was pretextual or that the real reason for the decision to remove him from Bahrain was discrimination. Balk himself expressed concern about his safety. Whether there was a basis for their accusations or not, students complained that Balk had used words with them that were "extremely rude, humiliating, disrespectful and full of clear racism." App. 175. Balk acknowledged using words that some certainly could have found offensive. Id. at 735, 741, 742. Again, whether they were accurate or not, articles were published reporting that a professor at a private university had engaged in blasphemous conduct, and Balk acknowledges that, although he was not named, he was widely believed to be the professor in question. As a reasonable jury could only find, these circumstances created an unsafe environment for Balk.4
Moreover, Balk has pointed to no evidence to suggest that NYIT played any role in the leaking of the student complaint to the newspapers or that it had any control over the publication of the articles. In addition, the record demonstrated that, far from discriminating against white, non-Muslim Americans in Bahrain, NYIT actively recruited white, American faculty members of different religions to teach at its Bahrain campus.
Balk contends that NYIT discriminated against him "to satisfy the discriminatory animus of the customer base at NYIT Bahrain," referring apparently to Muslim students, NYIT administrators, and Infotec employees. Pl.-Appellant Br. at 23-25. In essence, Balk relies on the "customer preference" cases, see, e.g., Joseph v. Owens & Minor Distrib, Inc., 5 F. Supp. 3d 295, 314 (S.D.N.Y. 2014) (...
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