11-3464-cv
Piccone v. Town of Webster

                               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.


        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
7th day of February, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            RICHARD C. WESLEY,
                        Circuit Judges.
_____________________________________________________

PAMELA PICCONE,

                                   Plaintiff-Appellant,

                             -v-                                            11-3464-cv

TOWN OF WEBSTER, RONALD NESBITT, TOWN OF WEBSTER SUPERVISOR, IN HIS
OFFICIAL AND INDIVIDUAL CAPACITY, BARRY A. DEAN, HIGHWAY
SUPERINTENDENT, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY,

                        Defendant-Appellees.
_____________________________________________________

Appearing for Appellant:           STEVEN E. LAPRADE (Christina A. Agola, on the brief),
                                   Christina A. Agola, PLLC, Rochester, NY.

Appearing for Appellee:            JOSHUA FEINSTEIN (Adam W. Perry, on the brief), Hodgson
                                   Russ LLP, Buffalo, NY.

     Appeal from a judgment of the United States District Court for the Western District of
New York (Telesca, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Plaintiff-Appellant Pamela Piccone (“Plaintiff”) appeals from the district court’s
(Telesca, J.) grant of summary judgment in favor of Defendant-Appellees (“Defendants”). In
her complaint, Plaintiff alleged, inter alia, discrimination on the basis of age in violation of 42
U.S.C. § 1983 (“Section 1983”) and the New York State Human Rights Law (“NYSHRL”), N.Y.
Exec. Law §§ 290-301; a hostile work environment in violation of Section 1983 and the
NYSHRL; and liability against the Town of Webster under Monell v. New York City Department
of Social Services, 

 (1978). We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

        “We review a district court’s grant of summary judgment de novo.” Abdu-Brisson v.
Delta Air Lines, Inc., 

, 465 (2d Cir. 2001). We “view the evidence in the record in
the light most favorable to the non-moving party, drawing all reasonable inferences in that
party’s favor.” Id. at 466.

         Plaintiff’s age discrimination claims under Section 1983 and the NYSHRL are analyzed
under the framework established by McDonnell Douglas Corp. v. Green, 

 (1973).1
See Back v. Hastings On Hudson Union Free School Dist., 

, 123 (2d Cir. 2004);
Abdu-Brisson, 239 F.3d at 466. “Under this framework, . . . a plaintiff must first establish a
prima facie case of age discrimination.” Abdu-Brisson, 239 F.3d at 466. “Once the plaintiff has
made out a prima facie case, the employer is required to offer a legitimate, nondiscriminatory
business rationale for its actions.” Id. “If the employer articulates such a reason, the
presumption of age discrimination dissolves, and the burden shifts back to the plaintiff to prove
that the employer’s stated reasons are merely pretextual and that age discrimination was the true
reason for the adverse employment action.” Id. “To establish a prima facie case of age
discrimination, a plaintiff must show four things: (1) [s]he is a member of the protected class;
(2) [s]he is qualified for [her] position; (3) [s]he has suffered an adverse employment action; and
(4) the circumstances surrounding that action give rise to an inference of age discrimination.”
Id. (internal footnote omitted).




       1
         Plaintiff did not bring claims under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634. Claims under Section 1983 and the ADEA differ in the third
step of the McDonnell Douglas framework: Under Section 1983, Plaintiff must show that age
discrimination “motivated at least in part” the adverse employment action, while, under the
ADEA, Plaintiff must show that the age discrimination was the “but for cause” of the adverse
employment action. Gorzynski v. JetBlue Airways Corp., 

, 106 (2d Cir. 2010)
(internal quotation marks omitted). It is an open question in our circuit whether the ADEA
preempts age discrimination claims under Section 1983. However, because we find that
Plaintiff’s claim fails at McDonnell Douglas step one, we decline to address the preemption
issue here.

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        Here, Plaintiff alleges that Defendants discriminated against her by terminating her from
her position as drainage department clerk. Plaintiff has established the first three elements of a
prima facie case. However, viewing the evidence in the record in the light most favorable to
Plaintiff, she has failed to establish circumstances surrounding her termination that give rise to
an inference of age discrimination. See Leibowitz v. Cornell Univ., 

, 502 (2d Cir.
2009) (quoting Chambers v. TRM Copy Ctrs. Corp., 

, 37 (2d Cir. 1994)) (listing
circumstances that may lead to an inference of discriminatory intent). Accordingly, Plaintiff’s
claims fail.

        Next, Plaintiff raises hostile work environment claims pursuant to Section 1983 and the
NYSHRL. To defeat a motion for summary judgment on a claim of hostile work environment,
“a plaintiff must produce evidence that the workplace [wa]s permeated with discriminatory
intimidation, ridicule, and insult, that [wa]s sufficiently severe or pervasive to alter the
conditions of the victim’s employment.” Cruz v. Coach Stores, Inc., 

, 570 (2d Cir.
2000) (internal quotation marks omitted).

        Plaintiff makes hostile work environment claims on the basis of race, age, and sex. Her
claims fail because she has failed to allege facts sufficient to support a finding of a severe or
pervasive conduct. See Harris v. Forklift Sys., Inc., 

, 23 (1993) (listing factors to
look at in determining whether a work environment is hostile).

        Finally, Plaintiff alleges Monell liability against the Town of Webster. “[A] local
government may not be sued under § 1983 for an injury inflicted solely by its employees or
agents.” Monell, 436 U.S. at 694. “Instead, it is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible under
§ 1983.” Id. “[T]o hold a city liable under § 1983 for the unconstitutional actions of its
employees, a plaintiff is required to plead and prove three elements: (1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.”
Torraco v. Port Auth. of N.Y. and N.J., 

, 140 (2d Cir. 2010) (internal quotation
marks omitted). Here, we need not reach the issue of whether the Town of Webster engaged in
an official policy or custom that affected Plaintiff, because she has failed to allege a denial of a
constitutional right. Accordingly, her Monell claim fails.

      We have considered Plaintiff’s remaining arguments and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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