Filed: Jan. 18, 2012
Latest Update: Feb. 22, 2020
Summary: 10-5142-cv Orlando v. Department of Transportation 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 NOTA
Summary: 10-5142-cv Orlando v. Department of Transportation 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 NOTAT..
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10-5142-cv
Orlando v. Department of Transportation
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 TO 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
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 18th day of January, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 Felice Orlando,
15
16 Plaintiff-Appellant,
17
18 v. 10-5142-cv
19
20 Department of Transportation,
21 Commissioner,
22
23 Defendant-Appellee.
24
25 _____________________________________
26
27
28 FOR PLAINTIFF-APPELLANT: Felice Orlando, pro se,
29 Waterford, CT
30
1 FOR DEFENDANT-APPELLEE: Michael K. Skold, Assistant
2 Attorney General, for
3 George Jepsen, Attorney
4 General,
5 Hartford, CT
6 Appeal from a judgment of the United States District
7 Court for the District of Connecticut (Underhill, J.).
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
9 AND DECREED that the judgment of the district court is
10 AFFIRMED.
11 Plaintiff-Appellant Felice Orlando, pro se, appeals the
12 district court’s dismissal of his complaint, brought
13 pursuant to Title VII of the Civil Rights Act of 1964, 42
14 U.S.C. § 2000e et seq. (“Title VII”), alleging claims of
15 discrimination, retaliation, and a hostile work environment.
16 We assume the parties’ familiarity with the underlying
17 facts, the procedural history of the case, and the issues
18 presented for review.
19 We review an order granting summary judgment de novo
20 and ask whether the district court properly concluded that
21 there were no genuine issues of material fact and that the
22 moving party was entitled to judgment as a matter of law.
23 See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
24 (2d Cir. 2003). “In determining whether there are genuine
2
1 issues of material fact, we are required to resolve all
2 ambiguities and draw all permissible factual inferences in
3 favor of the party against whom summary judgment is sought.”
4 Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)
5 (internal quotation marks omitted). However, “conclusory
6 statements or mere allegations [are] not sufficient to
7 defeat a summary judgment motion.” Davis v. New York, 316
8 F.3d 93, 100 (2d Cir. 2002).
9 [1] In order to make out a prima facie case of
10 discrimination in violation of Title VII, a plaintiff has
11 the burden of establishing that: (1) he is a member of a
12 protected class; (2) he performed the job satisfactorily or
13 was qualified for the position; (3) he suffered an adverse
14 employment action; and (4) the action occurred under
15 circumstances giving rise to an inference of discrimination.
16 See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802
17 (1973). Once a plaintiff makes out a prima facie case of
18 discrimination, the burden of production shifts to the
19 employer to demonstrate a legitimate, non-discriminatory
20 reason for the adverse employment decision. See
id. The
21 burden then shifts back to the plaintiff to present evidence
22 that the employer’s proffered reason is a pretext for an
23 impermissible motive. See
id. at 804-05.
3
1 Although Orlando alleged that the Appellee failed to
2 promote him, he had been promoted three times. Appellee’s
3 failure to promote Orlando in 2007 cannot support a prima
4 facie discrimination finding because he failed the test that
5 was administered for the promotion that year. Therefore, he
6 was not qualified for the position. Absent an adverse
7 employment action, Orlando has not alleged a discrimination
8 claim under Title VII. See, e.g., Sanders v. N.Y. City
9 Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (an
10 adverse employment action involves a “materially adverse
11 change in the terms and conditions of employment” (internal
12 quotation marks omitted)).
13 [2] To establish a prima facie Title VII retaliation claim,
14 Orlando would have to show that: (1) he engaged in protected
15 activity under Title VII; (2) the DOT was aware of the
16 activity; (3) he suffered an adverse employment action; and
17 (4) there was a causal connection between the protected
18 activity and the adverse action. See Mack v. Otis Elevator
19 Co.,
326 F.3d 116, 129 (2d Cir. 2003). Upon such a prima
20 facie showing, the DOT would bear the burden of showing a
21 legitimate, nonretaliatory reason for the adverse employment
22 action, and, if it made such a showing, Orlando would then
23 have to demonstrate that the reason proffered was
4
1 pretextual. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216
2 (2d Cir. 2001). As set forth above, Orlando has not shown
3 that he suffered an adverse employment action, and he
4 therefore cannot state a retaliation claim under Title VII.
5 [3] To prevail on a hostile work environment claim, a
6 plaintiff must show: (1) a workplace “permeated with
7 discriminatory intimidation that was sufficiently severe or
8 pervasive to alter the conditions of [his] work environment,
9 and (2) that a specific basis exists for imputing the
10 conduct that created the hostile work environment to the
11 employer.” Petrosino v. Bell Atl.,
385 F.3d 210, 221 (2d
12 Cir. 2004). “For racist comments, slurs, and jokes to
13 constitute a hostile work environment . . . there must be
14 more than a few isolated incidents of racial enmity.”
15 Aulicino v. N.Y. City Dep’t of Homeless Servs.,
580 F.3d 73,
16 83 (2d Cir. 2009) (internal quotation marks omitted).
17 “Overall, the quantity, frequency, and severity of the slurs
18 at issue are to be considered cumulatively in order to
19 obtain a realistic view of the work environment.”
Id.
20 (internal quotation marks and alterations omitted).
21 Under Title VII, a complaint must be filed with the
22 Equal Employment Opportunity Commission within 300 days of
23 the alleged unlawful act. See 42 U.S.C. § 2000e-5(e)(1).
5
1 However, with respect to hostile work environment claims,
2 consideration is given to “behavior alleged outside the
3 statutory time period, . . . so long as an act contributing
4 to that hostile environment takes place within the statutory
5 time period.” Amtrak v. Morgan, 536 U.S. 101, 105 (2002).
6 Although Orlando’s deposition testimony reflects that a co-
7 worker called him racial slurs in 1996, Orlando also
8 testified that the co-worker has retired; and there is a
9 dearth of record evidence that Orlando was subjected to
10 similar episodes thereafter. Even if derogatory comments
11 made in 1996 created a hostile work environment, they could
12 not be timely raised as part of Orlando’s hostile work
13 environment claim in his 2006 Equal Employment Opportunity
14 Commission complaint.
15 We have considered Orlando’s remaining arguments and
16 find them to be without merit. Accordingly, we AFFIRM the
17 judgment of the district court.
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
6
