Filed: Feb. 22, 2019
Latest Update: Mar. 03, 2020
Summary: 17-2852 Nunez v. Lima 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 ASUMMARY ORDER@). A PART
Summary: 17-2852 Nunez v. Lima 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 ASUMMARY ORDER@). A PARTY..
More
17-2852
Nunez v. Lima
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 ASUMMARY ORDER@). A PARTY CITING TO 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 22nd day of February, two thousand nineteen.
PRESENT:
JON O. NEWMAN,
SUSAN L. CARNEY,
Circuit Judges,
RICHARD J. SULLIVAN, *
District Judge.
_____________________________________
Rosa A. Nunez,
Plaintiff-Appellant,
v. 17-2852
Bureau Chief Joseph A. Lima, and individually,
New York State Department of Corrections and
Community Supervision,
Defendants-Appellees,
Department of Corrections and Community
Supervision,
Defendant.
_____________________________________
* Judge Richard J. Sullivan, of the United States District Court for the Southern District of New
York, sitting by designation at the time this case was heard.
FOR PLAINTIFF-APPELLANT: Rosa A. Nunez, pro se, Bronx, NY.
FOR DEFENDANTS-APPELLEES: Steven C. Wu, Deputy Solicitor General,
(David Lawrence III, Assistant Solicitor
General, on the brief), for Barbara D.
Underwood, Acting Attorney General of the
State of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of New
York (Furman, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court dated September 5, 2017, is AFFIRMED.
Appellant Rosa Nunez, proceeding pro se, sued her employer, the New York State
Department of Corrections and Community Supervision (“DOCCS”), and her former bureau chief,
Joseph Lima, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title
VII”); the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq. (“NYSHRL”); and
the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq. (“NYCHRL”). As
relevant here, Nunez alleged that Lima and her coworkers created a hostile work environment and
that Lima retaliated against her after she made a formal complaint of sex harassment, all in violation
of Title VII, the NYSHRL, and the NYCHRL. The District Court dismissed the Title VII and the
NYSHRL hostile work environment claims under Federal Rule of Civil Procedure 12(b)(6), granted
summary judgment to defendants on the retaliation claims, and declined to exercise supplemental
jurisdiction over the NYCHRL claims. Nunez appeals and also moves to supplement the record
on appeal. We assume the parties’ familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal, to which we refer only as necessary to explain our decision to
affirm.
2
As an initial matter, we deny Nunez’s motion to supplement the record on appeal with
interrogatory responses, errata sheets and alterations to her deposition transcript, her letter to the
District Court, and two letters from her therapist. The motion is moot in part because the
interrogatory responses, the letter, and alterations to her deposition transcript are already part of the
record. We deny her motion to add to the record two letters written by her therapist because they
were not before the District Court and Nunez does not present any “extraordinary circumstances”
warranting their consideration for the first time on appeal. See Int’l Bus. Machs. Corp. v.
Edelstein,
526 F.2d 37, 45 (2d Cir. 1975) (per curiam). Even were we to consider them, however,
our analysis would not be affected because, although they tend to confirm that Nunez has been in
distress, they do not tend to establish the substance of Nunez’s claims or to make her allegations
actionable.
I. NYSHRL Hostile Work Environment Claim
On review of a motion to dismiss, we “accept[] as true all factual claims in the complaint
and draw[] all reasonable inferences in the plaintiff’s favor.” Fink v. Time Warner Cable,
714
F.3d 739, 740–41 (2d Cir. 2013) (per curiam). Our review is conducted de novo.
Id.
According to the amended complaint, Lima, one of Nunez’s supervisors, started asking
Nunez to go with him to the movies beginning in September 2010. Although Nunez at first
declined, Lima and Nunez ultimately went out together several times between December 2010 and
May 2011. Then, at a lunch in May 2011, Lima declared to Nunez that “he was ‘infatuated’ with
her.” App’x 23, Am. Compl. ¶ 26. Nunez did not reciprocate and responded that she no longer
felt comfortable socializing with Lima alone outside of work. Nevertheless, Lima persisted and
invited Nunez “to see plays with him” later in 2011 and 2012. App’x 24, Am. Compl. ¶ 30. In
3
June 2012, Lima twice invited Nunez to go out with him, and told her that if she declined, “he
would require her to . . . transfer all her contacts into [her] newly issued Blackberry.” App’x 24,
Am. Compl. ¶ 31.
Nunez next alleges a number of grievances regarding Lima’s workplace conduct. In
September 2012, three months after Lima’s last invitation, Lima placed Nunez in a new work
partnership, but, after Nunez complained, he reversed course and placed Nunez back into her
previous partnership. From November 2012 to April 2013, Lima “did not split the caseload for
coverage,” forcing Nunez to “work much harder by having to take on additional reports.” App’x
25, Am. Compl. ¶ 35. Nunez alleges that, beginning in or about June 2013, over one year after
Lima last asked her to go out with him, Lima assigned her undesirable cases; delayed transferring
to her a specialized caseload that she wanted; asked her to attend a training session she was not
interested in attending; changed her cubicle and parking spot assignments; and did not give her a
preferred time slot for a training. Nunez alleges that in January 2014, Lima delayed the processing
of a violation-of-parole report that she prepared. She asserts finally that in August 2014 (more
than two years after Lima last invited Nunez out), he declined to permit DOCCS to reimburse her
for work-related travel expenses.
We agree with the District Court that, on these allegations, Nunez has not sufficiently
pleaded a claim of a hostile work environment under the NYSHRL. 1 NYSHRL hostile work
environment claims are analyzed under the same standard as are similar claims brought under Title
1
The District Court dismissed Nunez’s Title VII hostile work environment claims as time-barred. On appeal, Nunez
challenges this ruling only in her reply brief. We therefore treat as waived any argument regarding the timeliness of
her Title VII hostile work environment claims. JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V.,
412 F.3d 418, 428 (2d Cir. 2005).
4
VII. Summa v. Hofstra Univ.,
708 F.3d 115, 123–24 (2d Cir. 2013). To establish a hostile work
environment claim, a plaintiff must show, among other things, that “the workplace was permeated
with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of
his or her work environment.” Petrosino v. Bell Atl.,
385 F.3d 210, 221 (2d Cir. 2004) (internal
quotation marks and brackets omitted). To determine whether this standard is met, we consider
the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and
whether the conduct unreasonably interferes with the employee’s work performance. See Mormol
v. Costco Wholesale Corp.,
364 F.3d 54, 58 (2d Cir. 2004). A plaintiff must show “not only that
she subjectively perceived the environment to be abusive, but also that the environment was
objectively hostile and abusive.” Demoret v. Zegarelli,
451 F.3d 140, 149 (2d Cir. 2006).
The conduct Nunez alleges is not sufficiently “severe or pervasive” to amount to a hostile
work environment under the NYSHRL.
Petrosino, 385 F.3d at 221. Although Lima allegedly
continued to invite Lima to plays after she asked him to stop, he ceased asking her out altogether
in June 2012, after Nunez again made clear she did not want to socialize with him outside of work.
These events alleged do not reach the level of pervasiveness required to plausibly plead the
existence of a hostile work environment. In addition, it does not appear that Lima’s behavior
“alter[ed] the conditions of [her] employment” by interfering materially with Nunez’s work
performance, since Nunez does not allege that she received negative evaluations from her
supervisors during the relevant period. Perry v. Ethan Allen, Inc.,
115 F.3d 143, 149 (2d Cir.
1997) (internal quotation marks omitted).
Nunez’s various workplace grievances similarly do not suffice to state a plausible hostile
work environment claim. Nunez has not alleged that these relatively minor acts were “more than
5
episodic” or that they became “pervasive.”
Id. (internal quotation marks omitted). She also does
not plausibly plead that the acts were caused by any lingering sex-based animus of Lima’s. Nearly
all of them took place at least 12, and as long as 24, months after Lima last asked Nunez to go out
with him, and no other basis for finding an unlawful causal nexus was alleged. Accordingly, we
affirm the District Court’s dismissal of Nunez’s hostile work environment claim under the
NYSHRL.
At oral argument, Nunez forcefully conveyed her sense of the impropriety of Lima’s
conduct and the anguish she felt as a result of his behavior. Nevertheless, to survive a motion to
dismiss, Nunez must allege not only that she subjectively felt that the environment was abusive;
she must also plead facts that, if proven, would establish that it was objectively so under state law.
Although Lima’s behavior as alleged may have been inappropriate for a supervisor, Nunez has not
plausibly alleged that her workplace was so permeated with discriminatory ridicule and insult as to
alter the conditions of her employment and amount to a hostile work environment under applicable
law.2
II. Retaliation Claim
We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and
draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t,
706 F.3d
120, 127 (2d Cir. 2013) (per curiam). Summary judgment is proper “only when, construing the
evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any
2
Judge Newman dissents in part, believing that the supervisor’s threat to impose even a slight work-related burden if
Nunez refused her supervisor’s demand to continue dating after he had told her that he was infatuated with her and
after she had told him that she wanted no further dating suffices to permit her state law hostile work environment
claim to survive a motion to dismiss her complaint.
6
material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff,
642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
The District Court correctly granted summary judgment to defendants on Nunez’s Title VII
and NYSHRL retaliation claims. Whether brought under Title VII or the NYSHRL, retaliation
claims are governed by the same standard. Reed v. A.W. Lawrence & Co. Inc.,
95 F.3d 1170, 1177
(2d Cir. 1996). A plaintiff must show “(1) participation in a protected activity; (2) that [the
employer] knew of [the plaintiff’s] participation in that protected activity; (3) that [she] suffered an
adverse employment action; and (4) that there exists a causal relationship between the protected
activity and the adverse employment action.” Hicks v. Baines,
593 F.3d 159, 166 (2d Cir. 2010).
To establish such an adverse employment action, “a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse.” Burlington Northern & Santa Fe
Ry. Co. v. White,
548 U.S. 53, 68 (2006). In the retaliation context, this means the action might
well “have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Id. (internal quotation marks omitted). Thus, Title VII’s “antiretaliation provision protects an
individual not from all retaliation, but from retaliation that produces an injury or harm.”
Id. at 67.
We have ruled that, even if prompted by a retaliatory motive, “trivial harms” or “petty slights or
minor annoyances” do not constitute actionable adverse acts. Tepperwien v. Entergy Nuclear
Operations, Inc.,
663 F.3d 556, 571 (2d Cir. 2011) (internal quotation marks omitted).
Here, Nunez did not present evidence of any discrete actions taken by Lima or DOCCS that
were severe enough that they “might well deter a reasonable employee from complaining about
discrimination.” Burlington
Northern, 548 U.S. at 69. When Miguel Medina, another
supervisor, revoked or “unsubmitted” Nunez’s submission of two of Nunez’s timesheets, Nunez
7
was able to resubmit them, and Medina then approved them. Thus, such allegedly retaliatory
activity was at most a minor annoyance. And although Medina and Lima were also shown to have
delayed processing a violation-of-parole report that Nunez filed, Nunez was not disciplined for the
delay. Further, Nunez had signed and dated the timely filed report, which meant that she was
protected against any penalty. From Nunez’s perspective, Lima may have aimed to undermine
her professional credibility and tried to create an appearance that Nunez was slow to submit her
paperwork. Still, Nunez never received any negative evaluation from her supervisors, and the
record suggests that Lima and Medina responded favorably to some of Nunez’s complaints about
her work conditions.
In these circumstances, we conclude, as did the District Court, that no reasonable worker
would be dissuaded by these actions from making a substantial charge of discrimination, and that a
reasonable fact-finder could not determine otherwise. See Rivera v. Rochester Genesee Regional
Transp. Auth.,
743 F.3d 11, 25-26 (2d Cir. 2014) (rejecting retaliation claim in context of collected
workplace grievances).
We have considered Nunez’s remaining arguments and conclude that they are without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
8