Betterson v. HSBC Bank USA, N.A. ( 2016 )

15-3463
Betterson v. HSBC Bank USA, N.A.
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of September, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 BARRINGTON D. PARKER,
8 DEBRA A. LIVINGSTON,
9 Circuit Judges.
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12 ELLEN BETTERSON,
13 Plaintiff-Appellant,
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15 -v.- 15-3463
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17 HSBC BANK USA, N.A.,
18 Defendant-Appellee,
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22 FOR APPELLANT: FRANK HOUSH, Housh Law Office,
23 PLLC, Buffalo, New York.
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25 FOR APPELLEE: ROBERT WEISSFLACH, Harter
26 Secrest & Emery LLP, Buffalo,
27 New York.
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1 Appeal from a judgment of the United States District
2 Court for the Western District of New York (Wolford, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
4 AND DECREED that the judgment of the district court be
5 AFFIRMED.
6 Plaintiff Ellen Betterson appeals from the judgment of
7 the United States District Court for the Western District of
8 New York (Wolford, J.) dismissing on summary judgment claims
9 for retaliation and for discrimination on the basis of race,
10 sex, and age. We assume the parties’ familiarity with the
11 underlying facts, the procedural history, and the issues
12 presented for review. We affirm because: 1) Betterson’s age
13 and sex discrimination claims based on conduct before June
14 2, 2009 are procedurally barred; 2) Betterson’s remaining
15 age and sex discrimination claims fail either to establish
16 an adverse employment action or circumstances giving rise to
17 an inference of discrimination; 3) her race discrimination
18 claim fails to allege an adverse employment action; and 4)
19 her retaliation claim fails to establish but-for causation.
20 Despite three extensions of time, Betterson failed to
21 submit an opposing statement of material facts along with
22 her opposition to HSBC’s motion for summary judgment. Such
23 a statement is required by the Western District’s Local Rule
24 56(a)(2). The district court found HSBC’s statements to be
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1 supported by the record, and it properly exercised its
2 discretion in deeming Betterson to have admitted HSBC’s own
3 statement of facts. N.Y. State Teamsters Conference Pension
4 & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49
5 (2d Cir. 2005).
6 Betterson was an HSBC employee from 1987 until her
7 termination in 2010. She alleges that, in 2005, two
8 supervisors began discriminating against her on the basis of
9 her race (African-American) and age. Betterson complained
10 internally, and in 2008 voluntarily transferred to a new
11 department at HSBC where she kept the same salary and
12 benefits. She alleges that the supervisor at her new
13 department discriminated against her on the basis of her sex
14 and age (but not her race). Betterson filed an EEOC
15 complaint alleging race, sex, and age discrimination on
16 March 29, 2010. HSBC terminated her employment in August
17 2010 at the same time as a reduction in force due to
18 corporate reorganization, and she filed a second EEOC
19 complaint alleging retaliation shortly after.
20 Betterson’s Title VII claim of sex discrimination and
21 her claim under the Age Discrimination in Employment Act
22 (“ADEA”) were properly dismissed. To sustain Title VII or
23 ADEA claims, a plaintiff must file administrative charges
24 with the EEOC within 300 days of the alleged act of
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1 discrimination. Van Zant v. KLM Royal Dutch Airlines, 80
2 F.3d 708, 712 (2d Cir. 1996) (Title VII); Tewksbury v.
3 Ottaway Newspapers, 192 F.3d 322, 328 (2d Cir. 1999) (ADEA).
4 Failure to comply bars claims based on those discriminatory
5 acts. See Van Zant, 80 F.3d at 712.
6 Betterson did not file charges with the EEOC until
7 March 29, 2010. The 300-day limit bars claims based on
8 conduct before June 2, 2009 unless an exception applies, and
9 no exception does here.1 Betterson’s ADEA and Title VII
10 claims based on conduct before that date were therefore
11 properly dismissed.
12 As to the ADEA and Title VII claims based on conduct
13 after that date, Betterson has not made out the necessary
14 prima facie case. Her termination is the only cognizable
15 adverse employment action she has alleged. Tepperwien v.
16 Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir.
17 2011) (criticism, “trivial harms,” and “petty slights” not
18 sufficient). But Betterson failed to plead that she was
1
The continuing violation exception is not available
because Betterson has only alleged a series of discrete acts
and has not plausibly alleged that those acts were in
furtherance of any ongoing policy of discrimination. See
Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-57 (2d
Cir. 2012). Nor is the related exception for a hostile work
environment claim available–-the discrete, isolated
incidents she alleges are not enough to create an
objectively hostile work environment. Petrosino v. Bell
Atl., 385 F.3d 210, 221-23 (2d Cir. 2004).
4
1 terminated due to discrimination--she failed to put it in
2 her complaint, her EEOC letter, or her summary judgment
3 papers. The district judge therefore refused to consider it
4 as part of the discrimination claim. In any event,
5 Betterson failed to establish that the termination occurred
6 under circumstances giving rise to an inference of
7 discrimination. Betterson alleges that her supervisor at
8 the time of termination discriminated against her on the
9 basis of age and sex. That supervisor was a woman, was
10 (slightly) older than Betterson, and had hired Betterson.
11 Betterson has adduced no evidence that the supervisor was
12 motivated by age or sex discrimination. Grady v. Affiliated
13 Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997) (fact that
14 supervisor had herself hired plaintiff suggested no
15 inference of discrimination). Betterson’s Title VII and
16 ADEA claims based on conduct after June 2, 2009 were
17 therefore properly dismissed.
18 Betterson’s race discrimination claim similarly fails
19 because she has not alleged an adverse employment action.
20 Exclusion from certain meetings is not an adverse employment
21 action; Betterson admits that she could still do her job and
22 there is no evidence that she was disadvantaged by that
23 exclusion. Dillon v. Morano, 497 F.3d 247, 254-55 (2d Cir.
24 2007). Nor can Betterson rely on the reorganization of the
5
1 reporting structure, because the reorganization did not
2 affect Betterson’s role, responsibilities, or pay--and the
3 reorganization was department-wide. Tepperwien, 663 F.3d at
4 568 (“trivial harms” are not materially adverse). Nor may
5 Betterson rely on her voluntary transfer to another
6 department, especially since that transfer did not affect
7 pay or benefits. See Kessler v. Westchester County Dept. Of
8 Social Services, 461 F.3d 199, 207 (2d Cir. 2006); Miller v.
9 Praxair, Inc. 408 F. App’x 408, 410 (2d Cir. 2010).2
10 Finally, Betterson’s retaliation claim fails because
11 she cannot establish that her EEOC complaint was a but-for
12 cause of her termination. Zann Kwan v. Andalex Grp. LLC,
13 737 F.3d 834, 845 (2d Cir. 2013). HSBC has put forward
14 uncontroverted evidence that Betterson was terminated as
15 part of a reduction in force due to corporate
16 reorganization, and that Betterson’s performance ratings
17 were worse than the employee who remained in her position.
18 A reduction in force is a legitimate, nonretaliatory reason
19 for termination. See Delaney v. Bank of Am. Corp., 766 F.3d
2
Betterson alleges that two supervisors in the first
department she worked in (Product Management) discriminated
against her on the basis of race, but she does not allege
that her supervisor in the second department she worked in
(Accounts Payable) did so. Because she transferred to
Accounts Payable in 2008 and was terminated in 2010, she
does not allege that she was terminated on the basis of
racial discrimination.
6
1 163, 168 (2d Cir. 2014). Betterson has adduced no evidence
2 indicating that reason was pretextual; so no reasonable
3 juror could have found that Betterson would have kept her
4 job had she not filed the EEOC complaint.
5 Summary judgment was therefore appropriate.
6 For the foregoing reasons, and finding no merit in
7 Betterson’s other arguments, we hereby AFFIRM the judgment
8 of the district court.
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11 FOR THE COURT:
12 CATHERINE O’HAGAN WOLFE, CLERK
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