Douglass v. Rochester City School District , 522 F. App'x 5 ( 2013 )

12-3227-cv
Douglass v. Rochester City Sch. Dist.
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 22nd day of May, two thousand thirteen.
PRESENT: RALPH K. WINTER,
REENA RAGGI,
Circuit Judges,
BRIAN M. COGAN,
District Judge.*
----------------------------------------------------------------------
GRACE O. DOUGLASS,
Plaintiff-Appellant,
v. No. 12-3227-cv
ROCHESTER CITY SCHOOL DISTRICT, SAMUEL
RODRIGUEZ, CORNELIUS ZWIERLEIN, CONNIE
LEECH,
Defendants-Appellees.
----------------------------------------------------------------------
FOR APPELLANT: Christina A. Agola, Esq., Rochester, New York.
*
Judge Brian M. Cogan, of the United States District Court for the Eastern District
of New York, sitting by designation.
FOR APPELLEES: Edwin Lopez-Soto, Cara M. Briggs, Esqs., Rochester,
New York.
Appeal from a judgment of the United States District Court for the Western District
of New York (David G. Larimer, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on July 6, 2012, is AFFIRMED.
Plaintiff Grace Douglass, a former probationary athletic director with the Rochester
City School District, appeals from an award of summary judgment in favor of defendants on
Douglass’s federal and state law claims of retaliation and a racially and sexually hostile work
environment, see 42 U.S.C. §§ 1981, 2000e et seq.; N.Y. Exec. Law § 290 et seq. Because
the applicable legal standards are essentially the same, see Hicks v. Baines, 593 F.3d 159,
164 (2d Cir. 2010); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004), we
need not discuss the federal and state claims separately. We will uphold the challenged
award of summary judgment only if the record, reviewed de novo in the light most favorable
to the non-moving party, reveals “no genuine dispute as to any material fact” and the
movant’s entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Ramos v.
Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012). We assume the parties’
familiarity with the facts and record of prior proceedings, which we reference only as
necessary to explain our decision to affirm for substantially the reasons set forth in the
district court’s well-reasoned opinion. See Douglass v. Rochester City Sch. Dist., 873
F. Supp. 2d 507 (W.D.N.Y. 2012).
2
1. Hostile Work Environment Claim
Douglass submits that judgment should not have been entered in favor of defendants
because she has stated a hostile work environment claim sufficient to survive a motion for
judgment on the pleadings. While such a showing might be sufficient to defeat a motion
pursuant to Fed. R. Civ. P. 12(b)(6) or 12(c), on a Rule 56(a) motion, the district court
correctly required Douglass to adduce admissible evidence showing that her workplace was
so “permeated with discriminatory intimidation, ridicule, and insult . . . as to alter the
conditions of [her] employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(internal quotation marks omitted); accord Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir.
2004). Douglass’s conclusory assertions that she was targeted by various supervisory
officials on the basis of race and gender, which she claims the district court ignored, cannot
satisfy this requirement. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d
290, 310 (2d Cir. 2008). As for her allegations of mistreatment by defendant
Rodriguez—including addressing her discourteously, denying her requests for athletic and
other equipment, and excluding her from meetings—we conclude, as the district court did,
that these actions do not rise to the level of altering the conditions of employment. Insofar
as Douglass charges that Rodriguez once referred to parts of her anatomy in a demeaning
fashion, apparently a reference to his alleged comment that Douglass “get [her] butt out
there” to fill up water buckets for an opposing team during an athletic contest, even when we
view this comment in the light most favorable to Douglass, it cannot be deemed sufficient
to raise a triable issue on her hostile work environment claim.
3
Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000), cited by Douglass,
warrants no different conclusion, because the record there showed that the plaintiff was
subjected to an “extended barrage of obscene verbal abuse” that included profane epithets
for her gender and unambiguously crude comments about her sexual prowess, id. at 148; see
also Petrosino v. Bell Atl., 385 F.3d at 223–24. Douglass has not adduced any comparable
evidence. Nor has she demonstrated the requisite connection between Rodriguez’s actions
and the claimed grounds of discrimination. See Alfano v. Costello, 294 F.3d 365, 377 (2d
Cir. 2002). While Douglass submits that such a nexus is evident from her status as “the sole
African American female in the Athletic Director position,” Appellant’s Br. 28, the law
requires more because, as we explained in Alfano, “[e]veryone can be characterized by sex,
race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude,”
294 F.3d at 377.
Accordingly, for these reasons, as well as those stated by the district court, summary
judgment was correctly awarded to defendants on Douglass’s hostile work environment
claim.
2. Retaliation Claim
Douglass faults the district court’s conclusion that she failed to show that she suffered
an adverse employment action in response to her engaging in protected activity. We are not
persuaded.
4
Douglass does not—and cannot—dispute that her July 14, 2008 EEOC complaint
postdated both the Rochester School Superintendent’s July 7, 2008 decision to recommend
Douglass’s termination and the negative June 20, 2008 performance evaluation prompting
that decision. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)
(affirming summary judgment on retaliation claim where adverse job actions preceded
protected activity). She nevertheless argues that her December 10, 2007 letter to a school
human relations officer requesting a change in supervisor also constituted protected activity
for retaliation purposes. Upon our independent review of that correspondence, we conclude,
as the district court did, that while the letter characterized Rodriguez as having a brusque
manner and volatile temperament, it would not have placed a reasonable employer on notice
that Douglass thought the alleged mistreatment was motivated by race or gender. See
Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)
(requiring of protected activity that employer “understood, or could reasonably have
understood, that the plaintiff’s opposition was directed at conduct prohibited by”
anti-discrimination laws).
Nor has Douglass adduced sufficient evidence of adverse action following her EEOC
charge. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (describing
retaliatory action as that “harmful to the point that [it] could well dissuade a reasonable
worker from making or supporting a charge of discrimination”). The lack of a tenure
recommendation necessarily meant that Douglass would be terminated at the end of her
5
probationary period. See N.Y. Educ. Law § 3012; Gould v. Bd. of Educ., 81 N.Y.2d 446,
451, 599 N.Y.S.2d 787 (1993) (holding that teacher not so terminated acquires tenure by
estoppel). Thus, although she labels an offered position teaching elementary physical
education “a severe demotion from Athletic Director,” Appellant’s Br. 21, the proper
comparison is not to her prior, non-tenured employment but to unemployment. Similarly,
the school district’s offer to extend Douglass’s probationary period for a second time, see
generally Juul v. Bd. of Educ., 76 A.D.2d 837, 838, 428 N.Y.S.2d 319 (2d Dep’t 1980)
(holding that employee facing tenure denial may agree to additional year of employment and
“reconsideration of the tenure determination at the end of the extra year”), aff’d, 55 N.Y.2d
648 (1981), even conditioned upon the withdrawal of her EEOC charge and a release of
discrimination claims, did not put her in any worse employment position than she would have
been in absent the offer. The school district was under no obligation to extend Douglass’s
employment as athletic director past the end of the probationary period.1
In any event, Douglass does not argue that the reasons given for her
termination—culminating in an overall job rating of “unsatisfactory”—were a pretext for
retaliatory animus. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010)
(affirming summary judgment on retaliation claim for lack of evidence that firing was
pretextual). Much less does she submit any evidence to support such a showing.
1
Notably, Douglass does not assert a claim for discriminatory denial of tenure.
6
Accordingly, defendants were entitled to summary judgment on Douglass’s retaliation
claim.
The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
7