Avillan v. Donahoe

11-1772-cv
Avillan v. Donahoe
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUITA
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 TO 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 for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 25th day of May, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DENNY CHIN,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 Anibal Avillan,
15
16 Plaintiff-Appellant,
17
18 v. 11-1772-cv
19
20 Patrick R. Donahoe, Postmaster
21 General, United States Postal
22 Service, JAF Building,
23
24 Defendant-Appellee.*
25
26 _____________________________________
27
28
29 FOR PLAINTIFF-APPELLANT: Anibal Avillan, pro se, Bronx, N.Y.
30
*
The Clerk of Court is directed to amend the official caption as shown above.
1 FOR DEFENDANT-APPELLEE: Brian K. Morgan and Joseph A.
2 Pantoja, Assistant United States
3 Attorneys, for Preet Bharara,
4 United States Attorney for the
5 Southern District of New York, New
6 York, N.Y.
7 Appeal from a judgment of the United States District Court
8 for the Southern District of New York (Berman, J.).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
10 DECREED that the judgment of the district court is AFFIRMED.
11 Plaintiff-Appellant Anibal Avillan appeals the dismissal of
12 his complaint, brought pursuant to Title VII of the Civil Rights
13 Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), alleging
14 claims of discrimination, including retaliation and a hostile
15 work environment. We assume the parties’ familiarity with the
16 underlying facts, procedural history, and issues on appeal.
17 We review an order granting summary judgment de novo and ask
18 whether the district court properly concluded that there were no
19 genuine issues of material fact and that the moving party was
20 entitled to judgment as a matter of law. See Miller v. Wolpoff &
21 Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).
22 An independent review of the record and the relevant case
23 law confirms that Avillan failed to show he suffered a materially
24 adverse action. See Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492
25 (2d Cir. 2010) (listing requirements for a prima facie Title VII
26 discrimination claim); Mack v. Otis Elevator Co., 326 F.3d 116,
2
1 129 (2d Cir. 2003) (listing requirements for a prima facie Title
2 VII retaliation claim). Appellant complains only of minor
3 workplace inconveniences, such as being replaced as acting group
4 leader, having his custodial route reassigned and having personal
5 items removed from a locker. These actions are not “materially
6 adverse.” See Burlington N. & Santa Fe Ry. v. White, 548 U.S.
7 53, 68 (2006) (holding that in a Title VII retaliation claim, a
8 materially adverse action is one that, “well might have dissuaded
9 a reasonable worker from making or supporting a charge of
10 discrimination” (internal quotation marks omitted)); Patrolmen's
11 Benevolent Ass'n v. City of N.Y., 310 F.3d 43, 51 (2d Cir. 2002)
12 (explaining that in a Title VII discrimination claim, “a
13 materially adverse change must be more disruptive than a mere
14 inconvenience or an alteration of job responsibilities” (internal
15 quotation marks omitted)); see also Hicks v. Baines, 593 F.3d
16 159, 165 (2d Cir. 2010) (noting that Title VII’s anti-
17 discrimination and anti-retaliation provisions are not
18 coterminous).
19 To the extent the amended complaint alleges a hostile work
20 environment claim, the conduct cited is insufficient to support
21 such a claim. See, e.g., Alfano v. Costello, 294 F.3d 365, 373
22 (2d Cir. 2002) (explaining that, in order to support a hostile
23 work environment claim, the conduct must have been “sufficiently
24 severe or pervasive to alter the conditions of the victim’s
25 employment”).
3
1 The district court did not err in disregarding allegations
2 Avillan raised for the first time in response to Potter’s summary
3 judgment motion. See Wright v. Ernst & Young LLP, 152 F.3d 169,
4 178 (2d Cir. 1998) (recognizing that a party may not use
5 opposition to a dispositive motion as a means to amend the
6 complaint).
7 Finally, to the extent that Avillan's pro se brief raises a
8 claim for the first time (that he was suspended without pay for
9 three months), “[i]t is the general rule . . . that a federal
10 appellate court does not consider an issue not passed upon
11 below.” See Singleton v. Wulff, 428 U.S. 106, 120-21 (1976); see
12 also Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir.
13 2005). Consequently, we decline to review this claim.
14 Finding no merit in Avillan's remaining arguments, we
15 hereby AFFIRM the judgment of the district court.
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
4