Helen TESTAGROSE, Plaintiff-Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellee, 369 F. App'x 231

SUMMARY ORDER Plaintiff-appellant appeals a March 31, 2009, memorandum and order of the district court granting defendant’s motion for

summary judgment and dismissing plaintiffs claims in their entirety. Plaintiff alleges that she was terminated from her position as a caretaker for the New York City Housing Authority (“NYCHA”) in violation of the Equal Protection Clause and 42 U.S.C. § 1983. Specifically, she alleges that she was disciplined more harshly than other similarly situated male caretakers. This claim is evaluated under the same rubric as gender discrimination claims brought under Title VII. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.2004).

We assume the parties’ familiarity with the underlying facts and procedural history. The district court concluded that Tes-tagrose had failed to present any evidence suggesting that her termination was the result of discriminatory animus and thus that she had not established a prima facie case of gender discrimination. We agree. To show discriminatory animus, Testag-rose primarily relied on evidence that other similarly situated male employees were treated more favorably. However, these comparators were not similarly situated.

The NYCHA terminated Testagrose after she was arrested for weapons possession, drug possession, and criminal mischief. The individuals Testagrose identifies as comparators either were not arrested or were arrested for less serious offenses. Additionally, in the two cases involving arrests, one comparator resigned before the disciplinary hearing, and the other pled guilty and accepted a suspension. In contrast, Testagrose did not offer to plead guilty or resign. Thus, none of the comparators was similarly situated to Testagrose “in all material respects.” See Shumway v.

United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.1997). Moreover, all of the comparators were, like Testagrose, brought up on disciplinary charges. In other words, they were treated exactly the same as Testagrose. Therefore, having produced no evidence of discrimination, Testagrose failed to establish a prima facie claim of gender discrimination. See Back, 365 F.3d at 123. Finally, the decision to terminate Tes-tagrose was based on the recommendation of a Trial Officer, a neutral decision maker whom Testagrose does not accuse of discrimination.

We have held that “[w]here an employee’s ultimate termination depends upon, and is allowed by, a decision of an independent and unbiased arbitrator based on substantial evidence after a fair hearing, the arbitration decision has probative weight regarding the requisite causal link between an employee’s termination and the employer’s illegal motive.” Collins v. N.Y.C. Transit Authority, 305 F.3d 113, 115 (2d Cir.2002). There is no evidence to suggest that the Trial Officer in this case was biased or that Testagrose did not receive a fair hearing.

We have considered Testagrose’s other arguments and find them without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.