07-0662-cv

Gueye v. Guttierez

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 7th day of May, two thousand and eight.

Present: JOSEPH M. McLAUGHLIN,

ROSEMARY S. POOLER,

Circuit Judges,

DENISE COTE,*

District Judge.

AMAR GUEYE,

Plaintiff-Appellant,

v. (07-0662cv)

CARLOS M. GUTIERREZ, Secretary, Department of Commerce,

Defendant-Appellee.

Appearing for Appellant: Amar Gueye, Pro Se, Cincinnati, OH.

Appearing for Appellee: Michael J. Garcia, United States Attorney for the Southern District of New York, Lawrence H. Fogelman and Jeffrey S. Oestericher, Assistant United States Attorneys, New York, NY.

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

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Amar Gueye appeals from the District Court's summary-judgment dismissal of his Title VII claims for racial, religious, and national origin discrimination and retaliation. We assume the parties' familiarity with the facts, proceedings below, and specification of issues on appeal.

We agree with the District Court that Gueye did not assert a prima facie claim for religious discrimination because he did not allege that he was disciplined for failing to comply with an employment demand that conflicted with his religious beliefs. See Knight v. Conn. Dep't of Pub.

Health, 275 F.3d 156, 167 (2d Cir. 2001). Assuming without deciding that Gueye established a prima facie case of racial or national origin discrimination or retaliation, defendant articulated legitimate, non-discriminatory reasons for the alleged adverse employment actions--refusing to transfer Gueye, demoting him, and ultimately terminating his employment. Gueye, therefore, was required to offer evidence from which a rational fact finder could find that defendant's reasons were pretextual and its true motivation discriminatory or retaliatory. See D'Cunha v.

Genovese/Eckerd Corp., 479 F.3d 193, 196 (2d Cir. 2007) (per curiam). Because he did not do so, judgment was properly entered against him.

In the memorandum submitted on this appeal, Gueye complains that the District Court granted extensions of time to defendant and failed to provide for depositions of defendant's employees. These claims lack merit because (1) the District Court has discretion to grant extensions of time, see Fed. R. Civ. P. 6(b), and Gueye does not establish that the District Court abused its discretion; and (2) Gueye does not claim and the record does not demonstrate that he requested that the District Court order the deposition of any of defendant's employees.

We, therefore, affirm the judgment of the District Court.

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

* The Honorable Denise Cote, United States District Judge for the Southern District of New York, sitting by designation.