Callistro v. New York City Parks Department

14-868-cv
Callistro v. New York City Parks Department
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 6th day of February, two thousand fifteen.
PRESENT:
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JEFFREY ALKER MEYER,*
District Judge.
_____________________________________
Cynthia Y. Callistro,
Plaintiff-Appellant,
v.
14-868-cv
New York City Parks Department, (Van
Cortland Park Nursery), Richard Cabo,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Cynthia Y. Callistro, pro se, Bronx, NY
*
Honorable Jeffrey Alker Meyer, of the United States District Court for the District of
Connecticut, sitting by designation.
FOR DEFENDANTS-APPELLEES: Kristin M. Helmers, Deborah A. Brenner, for
Zachary W. Carter, Corporation Counsel of
the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Cote, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Cynthia Callistro, proceeding pro se, appeals from the district court=s judgment
dismissing her hostile work environment claim under Title VII of the Civil Rights Act after a jury
verdict in favor of the New York City Parks Department. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
On appeal, Callistro reiterates her allegations concerning her hostile work environment
claim. We construe Callistro to be raising a general claim that the evidence presented at trial was
insufficient to support the jury verdict and that the weight of the evidence was against the verdict.
However, “[a] contention that there was insufficient evidence to warrant submission to the jury or
that the verdict was against the weight of the evidence cannot be raised for the first time on
appeal.” Scientific Holding Co., v. Plessey Inc., 510 F.2d 15, 28 (2d Cir. 1974) (citations
omitted). Even if we were to consider her claim for the limited purpose of determining whether
the jury’s verdict was “wholly without legal support,” Sojak v. Hudson Waterways Corp., 590 F.2d
53, 55 (1978) (per curiam) (remanding for new trial to prevent manifest injustice despite the fact
that appellant, who moved to set aside the jury verdict, failed to request a directed verdict before
submission of the case to the jury), remand for a new trial would not be warranted because the
Parks Department provided sufficient evidence to defeat Callistro’s hostile work environment
claim. See Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005) (“[W]e cannot weigh
conflicting evidence, determine the credibility of witnesses, or substitute our judgment for that of
the jury.”).
Callistro also argues that the district court erred in allowing the Parks Department to
introduce evidence that she had been receiving public assistance and had made offensive
comments to her coworkers. However, she cannot challenge the admission of the majority of this
evidence because she failed to object to its admission below. See In re Nortel Networks Corp.
Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (arguments not raised below are waived). To the
extent that she did object, she cannot demonstrate that the evidentiary rulings altered the outcome
of the trial because the challenged evidence is merely repetitive of the unchallenged evidence that
the jury had already heard. See Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997)
(evidentiary rulings reviewed for harmless error).
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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