Rosinski v. American Axle & Mfg., Inc. , 402 F. App'x 535 ( 2010 )

09-4569-cv
Rosinski v. American Axle & Mfg., Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 31st day
of August, two thousand ten.
Present:
ROBERT A. KATZMANN,
PETER W. HALL,
DENNY CHIN,
Circuit Judges
________________________________________________
BARBARA ROSINSKI,
Plaintiff-Appellant,
v. No. 09-4569-cv
AMERICAN AXLE & MFG., INC., TONAWANDA FORGE
DIVISION,
Defendant-Appellee.
________________________________________________
For Plaintiff-Appellant: LINDY KORN (Charles L. Miller, II, on the brief),
Law Offices of Lindy Korn, Buffalo, NY
For Defendant-Appellee: ELIZABETH M. BERGEN , Gibson, McAskill &
Crosby, LLP, Buffalo, NY
Appeal from the United States District Court for the Western District of New York
(Curtin, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiff-appellant Barbara Rosinski appeals from a judgment entered October 1, 2009
(Curtin, J.) granting defendant-appellant American Axle & Manufacturing, Inc.’s (“American
Axle’s”) motion for summary judgment and dismissing Rosinski’s employment discrimination
and retaliation claims. Rosinski brings claims under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e et seq., and the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
alleging that American Axle discriminated against her on the basis of her gender and disability
by passing her over for promotions, terminating her, and creating a hostile work environment.
She further alleges that American Axle retaliated against her for complaining about the hostile
work environment by terminating her. We assume the parties’ familiarity with the facts and
procedural history of this case.
Rosinski’s Title VII discrimination and retaliation claims are analyzed using the burden-
shifting paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000); Reed v. A.W. Lawrence & Co., 95
F.3d 1170, 1178 (2d Cir. 1996) (applying McDonnell Douglas to retaliation claims). Under this
analysis, the plaintiff first bears the burden of setting out a prima facie case of discrimination or
retaliation. See McDonnell Douglas, 411 U.S. at 802. If the plaintiff demonstrates a prima facie
case, that gives rise to a presumption of unlawful discrimination or retaliation, and the burden of
production shifts to the defendant, who is required to offer a legitimate, nondiscriminatory
rationale for its actions. See id. at 802-03. If the defendant offers such a rationale, the
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presumption of unlawful discrimination drops out and the burden shifts back to the plaintiff, at
which point “[i]n order to defeat summary judgment . . . , the plaintiff’s admissible evidence
must show circumstances that would be sufficient to permit a rational finder of fact to infer that
the defendant’s employment decision was more likely than not based in whole or in part on
discrimination [or retaliation].” Stern v. Trustees of Columbia Univ. in the City of N.Y., 131 F.3d
305, 312 (2d Cir. 1997).
We first address Rosinski’s discrimination claims under Title VII. We need not determine
whether Rosinski has put forward a prima facie case of discrimination because American Axle
has put forth legitimate, non-discriminatory rationales for each of the challenged actions, and
Rosinski has not countered them with sufficient evidence of pretext. With respect to Rosinski’s
having been passed over for a promotion, American Axle asserts that the male employee who was
promoted had supervisory experience that Rosinski lacked. And with respect to Rosinski’s
termination, American Axle explains that after business conditions deteriorated significantly,
Rosinski was laid off through a reduction in force.
In each case, Rosinski fails to demonstrate circumstances that would be sufficient to
permit a rational finder of fact to infer that American Axle’s decision was more likely than not
based on discrimination. The only evidence of pretext that Rosinski puts forward regarding her
failure to promote claim is that she was told that if she left to pursue a master’s degree, her job
might not be safe. She has not put forth any evidence that the male employee who was promoted
instead of her was less qualified. Regarding American Axle’s decision to terminate her
employment, Rosinski alleges that a male employee who was retained was on a “Personal
Improvement Plan.” This is insufficient to demonstrate that this male employee was less
qualified than Rosinski, and moreover Rosinski does not point to any evidence that she and the
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male employee were similarly situated. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d
Cir. 2003) (“A plaintiff relying on disparate treatment evidence must show she was similarly
situated in all material respects to the individuals with whom she seeks to compare herself.”)
(internal quotation marks omitted). We note too that upon her termination, Rosinski’s
responsibilities were taken over by another woman.
Rosinski also alleges that she was discriminated against by being subject to a hostile work
environment. To make out a hostile work environment claim, Rosinski must produce evidence
from which a trier of fact could conclude that her “workplace [was] permeated with
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter
the conditions of [her] employment and create an abusive working environment.’” See Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation omitted). “[W]hether an environment
is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” Id. at 23.
Rosinski’s evidence in this case does not rise to the level this Court requires to show a hostile
work environment. Most of her allegations surround her exclusion from a celebration of the
successful completion of a Y2K-related project and the fact that her commemorative plaque was
not personalized. These events are too insignificant to support a hostile work environment claim.
See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007) (“Minor incidents do
not merit relief.”). Rosinski puts forth just a few examples of inappropriate behavior by co-
workers during meetings in the 1990s, behavior that was addressed by American Axle. Thus,
even if her evidence did rise to the level of a hostile work environment, it cannot be imputed to
American Axle. See Dawson v. Bumble & Bumble, 398 F.3d 211, 223 (2d Cir. 2005).
Rosinski’s retaliation claim likewise fails. To establish a prima facie case of Title VII
retaliation, a plaintiff must show (1) “participation in a protected activity known to the
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defendant,” (2) “an employment action disadvantaging the plaintiff,” and (3) “a causal connection
between the protected activity and the adverse employment action.” Richardson v. Comm’n on
Human Rights & Opportunities, 532 F.3d 114, 123 (2d Cir. 2008). Rosinski alleges that she was
terminated because she complained about a hostile work environment. She fails, however, to
demonstrate a causal connection between her complaints and her termination. It strains credulity
to think that Rosinski’s complaints about the behavior of her co-workers in the 1990s, a complaint
that American Axle addressed, led to her termination in 2004, especially because she was
promoted in the interim. Moreover, as discussed above, American Axle has put forth a
legitimate, non-discriminatory rationale for Rosinski’s termination, and Rosinski has not put forth
evidence of pretext sufficient to permit a rational finder of fact to infer that her termination was
more likely than not based on retaliation for her complaints.
Finally, Rosinski’s claims under the ADA fail because she does not provide any evidence
that any of the adverse actions taken against her had anything to do with any disability she may
have had or have been perceived to have. The only thing Rosinski points to is American Axle’s
statement that while Rosinski was out for medical leave, two other women covered her
responsibilities and when she returned they continued doing this work. This evidence is undercut,
however, by the fact that Rosinski was promoted after her return such that she supervised four
people.
We have reviewed Rosinski’s remaining arguments and conclude that they lack merit.
Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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