Nos. 07-3542-cv (L), 07-3745-cv (xap).United States Court of Appeals, Second Circuit.
February 26, 2009.
AFTER ARGUMENT AND UPON DUE CONSIDERATION of the appeal from the United States District Court for the Eastern District of New York (Irizarry, J.), it is hereby ORDERED,ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED. We VACATE andREMAND for an explanation of the district court’s decision not to award costs.
Arnold Koenig, Koenig Samberg, Esqs., Mineola, NY, for Plaintiff-Appellant.
Sharon P. Margello, Jan Michelson, Ogletree Deakins, Nash Smoak Stewart, P.C., Morristown, NJ, for Defendant-Appellee.
PRESENT: Hon. JOSEPH M. McLAUGHLIN, Hon. GUIDO CALABRESI, Hon. DEBRA ANN LIVINGSTON, Circuit Judges.
Plaintiff-Appellant Felice Miller (“Miller”) appeals from a judgment of the United States District Court for the Eastern District of New York (Irizarry, J.) dismissing her claims of gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., a claim under the Equal Pay Act, 29 U.S.C. § 206(d), and various state law claims. Defendant-Appellee Batesville Casket Company, Inc. (“BCC”) cross appeals from the district court’s decision not to award costs. We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal.
I. Miller’s Appeal
In order to grant BCC’s motion for summary judgment, the district court was required to find that “no genuine issue as to any material fact [exists] and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A “genuine” dispute is one for which “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000) (internal quotation marks omitted), and a “material” fact is one that “might affect the outcome of the suit under the governing law.” Overton v. N.Y. State Div. of Military Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (internal quotation marks omitted). The summary judgment inquiry requires viewing the record in the light most favorable to the nonmoving party and resolving all ambiguities against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
On appeal, Miller argues, among other things, that the district court ignored material issues of fact regarding whether (1) Miller was subject to constructive discharge and (2) BCC’s non-discriminatory explanation for Miller’s account assignments was pretextual.
“To establish a `constructive discharge,’ a plaintiff must show that the employer deliberately ma[de her] working conditions so intolerable that [she was] forced into an involuntary resignation.” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993) (internal quotation marks omitted). Miller argues that her Performance Improvement Plan (“PIP”) was the equivalent of a constructive discharge because it was more onerous than PIPs given to male employees and, in any event, impossible to fulfill. The record indicates, however, that male employees were given PIPs with comparable sales quotas, and Miller does not argue that these quotas were not met. Significantly, after being placed on similar PIPs, the male employees retained their employment at BCC. Miller did not even attempt to comply with her PIP, which was adjusted in response to her objections. Additionally, Miller has provided insufficient evidence for a reasonable trier of fact to conclude that her PIP was impossible to meet. And the fact that two male employees retained their employment at BCC despite being placed on similar PIPs belies Miller’s contention
that placement on a PIP was tantamount to termination. Thus, the district court properly concluded that Miller failed to raise a material issue of fact regarding whether she was subject to constructive discharge.
As we held in James v. N.Y. Racing Ass 233 F.3d 149
(2d Cir. 2000), once the defendant employer moving for summary judgment in an employment discrimination case proffers its nondiscriminatory reason, “the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.” Id. at 154. We agree with the district court that Miller failed to provide sufficient evidence to rebut BCC’s non-discriminatory explanation for the allegedly more desirable sale accounts provided to Peter Ferris and Paul Thesfield, i.e., their seniority and experience. See Miller v. Batesville Casket Co., No. 02-cv-5612, 2007 WL 2120371, at *9-10 (E.D.N.Y. July 23, 2007). Miller also argues that she was given less desirable accounts than male employees in general. But Miller has failed to adduce sufficient evidence from which a reasonable trier of fact could find that she was given less desirable accounts tha similarly situated male employees, or that BCC’s proffered explanation for the assignment of accounts i.e., that accounts were assigned to provide each employee with a projected income in line with prior earnings and various other non-discriminatory factors, was a pretext for discrimination. See Miller, 2007 WL 2120371 at *10.
We have considered all of Miller’s claims and find them meritless. Accordingly, the judgment of the District Court is AFFIRMED.
II. BCC’s Cross Appeal
A district court’s decision to award costs “will be reviewed by this court only for abuse of discretion.” Dattner v. Conagra Foods, Inc., 458 F.3d 98, 100 (2d Cir. 2006) (per curiam). In Whitfield v. Scully, 241 F.3d 264 (2d Cir. 2001), we explained that an award of costs against the losing party “is the normal rule obtaining in civil litigation, not an exception,” and that “[i]n light of the general rule, when a prevailing party is denied costs, a district court must articulate its reasons for doing so.” Id. at 270. Here, despite the fact that BCC was the prevailing party, the District Court failed to articulate any reason for its decision not to award costs to BCC. This was an abuse of discretion. Hence, we vacate and remand to give the District Court an opportunity to explain its decision to dismiss the case without costs to either party. In doing so, we are not suggesting that a denial of costs would not be proper in this case — on that question we express no views — but simply that such a denial must be explained.