     17-1021-cv
     Wynn v. NYCHA

                                 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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   10th day of July, two thousand eighteen.
 4
 5   Present:        ROSEMARY S. POOLER,
 6                   ROBERT D. SACK,
 7                   SUSAN L. CARNEY,
 8                              Circuit Judges.
 9
10   _____________________________________________________
11
12   BRIAN WYNN, JOHN WILLIAMS, AWILDA
13   GUZMAN, JOSE OTERO, KEVIN FULTON,
14
15                                 Plaintiffs-Appellants,
16
17                         v.                                                   17-1021-cv
18
19   NEW YORK CITY HOUSING AUTHORITY,
20   LOCAL 237 INTERNATIONAL
21   BROTHERHOOD OF TEAMSTERS,
22
23                           Defendants-Appellees.
24   _____________________________________________________
25
26   Appearing for Appellants:     Lee S. Nuwesra, New York, N.Y.
27
28   Appearing for Appellees:      Roger Briton, Jackson Lewis P.C., Melville, N.Y., for New York
29                                 City Housing Authority
30
 1                                  Alexandra J. Howell, Archer, Byington, Glennon & Levine LLP
 2                                  (Robert T. McGovern, on the brief), Melville, N.Y., for Teamsters
 3                                  Local 237
 4
 5   Appeal from the United States District Court for the Southern District of New York (Schofield,
 6   J., Scheindlin, J.).
 7
 8        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 9   AND DECREED that the orders of said District Court are AFFIRMED.
10
11            Appellants Bryan Wynn, John Williams, Awilda Guzman, Jose Otero, and Kevin Fulton
12   appeal from two orders of the District Court for the Southern District of New York: a March 8,
13   2017 opinion (Schofield, J.) granting summary judgment to Appellees New York City Housing
14   Authority (“NYCHA”) and Local 237 of the International Brotherhood of Teamsters (“Local
15   237”) and a January 16, 2016 order (Scheindlin, J.) denying class certification. We assume the
16   parties’ familiarity with the underlying facts, procedural history, and specification of issues for
17   review.
18
19          We review grants of summary judgment de novo, viewing evidence in the light most
20   favorable to the non-movants. See Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015).
21
22           Appellants are Black and Hispanic individuals who work or worked for NYCHA as
23   “Caretakers P,” and they purport to represent a class of other persons working as Caretakers P.
24   Their definition of the class has varied during the litigation, but, stated most broadly, it appear to
25   include all minority Caretakers P employed by NYCHA beginning in April 2010. Along with
26   other NYCHA employees, Caretakers P are represented in collective bargaining by Local 237.
27   Caretakers P are paid less than the “prevailing wages”—that is, the wages earned by their
28   counterparts in the private sector, “Plasterer Helpers.” Appellants, pointing to the fact that over
29   90% of Caretakers P are Black and/or Hispanic, claim that NYCHA’s failure to pay them the
30   wages of Plasterer Helpers and Local 237’s alleged failure to fight for NYCHA to do so is due to
31   racial discrimination in violation of Title VII and the New York City Human Rights Law.
32
33           As a preliminary matter, we note that both the parties and the district court operated
34   under the seemingly incorrect assumption that New York law only authorizes prevailing wages
35   for public sector workers in the “Competitive Class.” See Wynn v. New York City Housing
36   Authority, 14 Civ. 2818, 2017 WL 933094 at *1 (S.D.N.Y. Mar. 8, 2017). We know of no
37   authority—and, when prompted, the parties could not point to any—indicating that prevailing
38   wages are only available to workers in the Competitive Class. Under New York Labor Law
39   § 220(3)(a), all “laborers, workmen, or mechanics” working for a contractor on public works
40   projects are entitled to “the prevailing rate of wages.” Cf. Golden v. Joseph, 307 N.Y. 62, 67
41   (1954); Casey v. Catherwood, 311 N.Y.S.2d 562, 563 (N.Y. 2d Dep’t 1970), aff’d, 28 N.Y.2d
42   702 (1971).
43
44           The question in this case is not whether Appellants and other Caretakers P were entitled
45   to prevailing wages. The question is whether NYCHA’s failure to pay those wages (or advocate
46   to the Department of Citywide Administrative Services to classify Caretakers P appropriately) or



                                                       2
 1   Local 237’s failure to advocate for those wages can be attributed to racial discrimination.
 2   Appellants have failed to produce evidence that Local 237 was motivated by discriminatory
 3   intent in taking any action related to Caretaker P wages. Accordingly, Appellants’ claims cannot
 4   survive summary judgment. See Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008)
 5   (plaintiffs must introduce evidence establishing that an adverse action “occurred under
 6   circumstances giving rise to an inference of discriminatory intent” to survive summary judgment
 7   on a Title VII claim); Ya-Chen Chen v. City University of New York, 805 F.3d 59, 76-77 (2d Cir.
 8   2015) (plaintiff must present “evidence from which a reasonable jury could conclude that
 9   discrimination on the basis of race…played a role in the [] Defendants’ actions” to survive
10   summary judgment on a NYCHRL claim).
11
12           Appellants’ theory of discrimination rests entirely on a comparison with another group of
13   NYCHA employees, called Mason Helpers, who also assist with construction. In contrast to
14   Caretakers P, the majority of Mason Helpers identify as white and all of them are paid prevailing
15   wages. However, Appellants have produced insufficient evidence to allow a fact-finder to
16   determine that Mason Helpers’ responsibilities are as similar to their private sector equivalents as
17   those of Caretakers P to Plasterer Helpers. What evidence we do have reveals at least one major
18   difference between Mason Helpers and Caretakers P, namely, Mason Helpers must undergo
19   extensive training and pass an exam. On this record, a jury could not reasonably find that
20   defendants were motivated by discriminatory animus.
21
22           Because we affirm the district court’s dismissal of Appellants’ discrimination claims on
23   the merits, their challenge to the denial of class certification on those claims is moot. See Dobson
24   v. Hartford Financial Services Group, Inc., 389 F.3d 386, 402 (2d Cir. 2004).
25
26           We have considered the remainder of Appellants’ arguments and find them to be without
27   merit. Accordingly, the orders of the district court hereby are AFFIRMED. Each side to bear its
28   own costs.
29
30
31                                                         FOR THE COURT:
32                                                         Catherine O’Hagan Wolfe, Clerk
33




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