Rodriguez v. Nassau County

19-3518
Rodriguez v. Nassau County
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
8th day of October, two thousand twenty.
PRESENT: JOHN M. WALKER, JR.,
PIERRE N. LEVAL,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
Margalie Rodriguez,
Plaintiff-Appellant,
v. No. 19-3518
County of Nassau, Nassau County
Commission on Human Rights,
Defendants-Appellees.
_____________________________________
For Plaintiff-Appellant: JOHN C. LUKE, JR., Slater Slater Schulman LLP,
Melville, NY.
For Defendants-Appellees: JACKIE L. GROSS, Deputy County Attorney, for Jared
Kasschau, Nassau County Attorney, Mineola, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Margalie Rodriguez appeals from a judgment entered on September 25,
2019 by the district court, granting summary judgment to Nassau County and the Nassau County
Commission on Human Rights (collectively, “the County”), and dismissing Rodriguez’s claims of
employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”), 42 U.S.C. § 1981, and the New York State Human Rights Law, N.Y.
Exec. Law § 290 et seq. We assume the parties’ familiarity with the underlying facts, procedural
history, and issues on appeal.
We review a district court’s grant of summary judgment de novo, construing the evidence
in the light most favorable to the non-moving party. Graves v. Finch Pruyn & Co., 457 F.3d 181,
183 (2d Cir. 2006). Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We “construe the facts in the light most favorable to the non-moving party
and . . . resolve all ambiguities and draw all reasonable inferences against the movant.” Aulicino
v. New York City Dep’t of Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009) (quotation marks
omitted). The non-moving party must still come forward with specific facts showing that there
is a genuine issue for trial, doing “more than simply show[ing] that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
On appeal, Rodriguez challenges only the district court’s dismissal of: (1) her failure to
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promote claim based on her gender, (2) her hostile work environment claim based on her national
origin and gender, and (3) her retaliation claim based on her complaints of discrimination, all under
Title VII. We analyze her failure to promote and retaliation claims using the familiar framework
set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-03 (1973). See Brown
v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). First, a plaintiff must establish a prima
facie case of discrimination, Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010), a
step that we have previously described as “minimal,” Walsh v. New York City Hous. Auth., 828
F.3d 70, 75 (2d Cir. 2016). If a plaintiff meets this initial burden, “the burden shifts to the
defendant to articulate ‘some legitimate, non-discriminatory reason’ for its action.” Holcomb v.
Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (quoting McDonnell Douglas, 411 U.S. at 802). If
the defendant does so, the burden shifts back to the plaintiff to demonstrate with admissible
evidence that the employer’s proffered reason “was not the true reason (or in any event not the
sole reason) for the employment decision, which merges with the plaintiff’s ultimate burden of
showing that the defendant intentionally discriminated against her.” Littlejohn v. New York, 795
F.3d 297, 307-08 (2d Cir. 2015).
1. Failure to Promote
Rodriguez asserts that she was not promoted to Executive Director of the Commission
because of her gender, making two arguments to support her claim. First, she contends that the
Chair of the Commission, Zahid Syed, harbored discriminatory views, telling Rodriguez during
her interview for the position that, “I want a man for the position . . . .” App’x at 1089, 1132. 1
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To select an Executive Director, the Chair of the Board of Commissioners interviews the candidates and
then makes a recommendation to the rest of the Board. After that initial process, “[t]he County Executive,
upon recommendation of the commission and subject to the confirmation of the [County] Legislature,”
makes the appointment. Nassau Cty. Admin. Code § 21-9.5.
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(Plaintiff also alleges that Syed expressed an intention to hire Pakistani and Indian individuals, but
those comments are irrelevant to her gender discrimination claim.) Second, Rodriguez claimed
that the male employee ultimately chosen for the position, Rodney McRae, was less qualified than
she was for the position.
We assume arguendo that Rodriguez established a prima facie case of employment
discrimination based on these facts and the County’s subsequent decision not to promote her to
the Executive Director position. We further conclude that the County proffered legitimate,
nondiscriminatory reasons for its decision to hire McRae instead – namely, McRae’s superior
qualifications and community involvement. Upon de novo review of the record, however, we find
that Rodriguez did not offer sufficient evidence to permit a reasonable factfinder to conclude that
her non-promotion was in any way based on her gender. See Texas Dep’t of Cmty. Affs. v.
Burdine, 450 U.S. 248, 259 (1981) (“[T]he employer has discretion to choose among equally
qualified candidates, provided the decision is not based upon unlawful criteria.”).
The only evidence Rodriguez presented, besides conclusory allegations that she was more
qualified than McRae for the position, is the comment that Syed allegedly made during her
interview that he “want[ed] a man for the position.” App’x at 1089. Although we disagree with
the district court’s determination that this statement to Rodriguez was inadmissible hearsay, we
conclude that her deposition testimony on this issue should not be considered in the summary
judgment analysis for a separate reason – that is, it directly contradicts her own testimony at an
earlier deposition. See Bentley v. AutoZoners, LLC, 935 F.3d 76, 88 (2d Cir. 2019) (“[The
plaintiff] cannot rely on her deposition testimony . . . because that testimony is inescapably and
unequivocally contradicted by her own sworn and written statements, and [the plaintiff] offers no
plausible explanation for the multitude of contradictions.”).
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In her first deposition on June 9, 2017, Rodriguez was asked in relation to her interview
with Syed for the position of Executive Director, “Did [Syed] say anything about your gender?”
App’x at 139. Rodriguez answered:
Commissioner Syed doesn’t have to say anything else to you about your gender.
The fact that in the past he has never acknowledged me and on at least two or three
different occasions that I’m aware, that I saw, Dan had stepped up and spoke to him
in a loud manner because of the way he was treating me.
App’x at 139. However, during Rodriguez’s second deposition on January 18, 2018, she testified
for the first time that Syed specifically told her, in the interview, that he “want[ed] a man for the
position.” App’x at 1089. She then included the same statement in her affidavit dated June 25,
2018.
We note that this is not a case in which counsel failed to “ask questions at the first
deposition sufficient to elicit the specific content” at issue. Hayes v. New York City Dep’t of
Corr., 84 F.3d 614, 620 (2d Cir. 1996). Instead, the question asked at the first deposition –
whether Syed said anything about Rodriguez’s gender – was a more than “sufficiently precise
question[] to elicit the amplification or explanation.” Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d
Cir. 1996). Rodriguez’s answer amounted to a denial that Syed commented on her gender during
the interview. We recognize that “[i]f there is a plausible explanation for discrepancies in a
party’s testimony, the court considering a summary judgment motion should not disregard the later
testimony because of an earlier account that was ambiguous, confusing, or simply incomplete.”
Langman Fabrics, a div. of Blocks Fashion Fabrics, Inc. v. Graff Californiawear, Inc., 160 F.3d
106, 112 (2d Cir.), amended, 169 F.3d 782 (2d Cir. 1998). With respect to a reason for the
discrepancy, Rodriguez has not offered any plausible explanation, only arguing that the district
court should not make credibility determinations at the summary judgment stage. Unlike in
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Hayes, in which the plaintiff was incarcerated and unrepresented at the time of his first deposition,
Rodriguez (a lawyer herself) was represented by counsel at both depositions. See Hayes, 84 F.3d
at 620. She did not explain in her appellate brief, affidavit, or elsewhere, why, at her first
deposition, she denied that Syed had commented on her gender. See Rojas v. Roman Catholic
Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (noting that the plaintiff was “given ample
opportunity to explain or reconcile [her] inconsistent and contradictory statements, but no such
explanation was provided”); Jeffreys v. City of New York, 426 F.3d 549, 555 n.2 (2d Cir. 2005)
(“Jeffreys failed to explain away these obvious inconsistencies with any plausible explanation.”
(quotation marks omitted)).
In short, Rodriguez’s testimony contradicted her earlier denial that Syed made a gender-
based comment. We have repeatedly ruled that, in such circumstances, a plaintiff who,
previously in the litigation, has denied an essential fact cannot resuscitate that fact in defending
against summary judgment by giving new testimony that asserts the previously denied fact. See
Bentley, 935 F.3d at 88; see also Langman Fabrics, 160 F.3d at 112; Rojas, 660 F.3d at 105(finding the district court properly rejected the plaintiff’s new allegations when the plaintiff (1)
referred to an individual as a “co-worker” in her earlier sworn statements and in her complaints,
yet described him as a supervisor in her papers opposing summary judgment, and (2) asserted in
her opposition papers, contrary to her earlier testimony in a criminal trial, that she did not make
any complaint about the individual’s sexual harassment); Jeffreys, 426 F.3d at 555 (affirming
summary judgment against the plaintiff and disallowing the plaintiff’s assertions in his
memorandum opposing summary judgment when they contradicted his three prior confessions as
well as his statements at his guilty plea and sentencing); Aziz Zarif Shabazz v. Pico, 994 F. Supp.
460, 470 (S.D.N.Y. 1998) (Sotomayor, J.) (granting summary judgment against plaintiff after
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concluding that “[f]rom the complaint, to plaintiff’s deposition, to his opposition papers to
defendants’ summary judgment motion, plaintiff’s allegations of the events at issue are replete
with inconsistent and contradictory statements”). The unexplained contradiction between
Rodriguez’s first deposition and her subsequent deposition testimony and affidavit “transcend
credibility concerns and go to the heart of whether the party has raised genuine issues of material
fact to be decided by a jury.” Rojas, 660 F.3d at 106.
Beyond the statement Rodriguez attributed to Syed in her second deposition and affidavit,
she submitted no evidence to the district court from which a rational jury could find that gender-
based discrimination played a role in the County’s promotion of McRae instead of Rodriguez.
Her assertion that she was better qualified than McRae was conclusory and was not substantiated
by the evidence. In any event, even if she was better qualified than McRae, that alone would not
show, as she must, that the reason for preferring McRae was gender discrimination. Accordingly,
because Rodriguez failed to raise a genuine dispute of material fact with respect to whether the
County’s decision not to promote her was based on gender discrimination, we affirm the district
court’s grant of summary judgment on Rodriguez’s failure to promote claim.
2. Hostile Work Environment
To prevail on a hostile work environment claim, a plaintiff must prove: “(1) that the
harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment, and (2) that a specific basis exists for imputing the
objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)
(quotation marks omitted). “[A] plaintiff need not show that her hostile working environment
was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a
sufficient combination of these elements, to have altered her working conditions.” Redd v. New
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York Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (quoting Pucino v. Verizon Commc’ns, Inc.,
618 F.3d 112, 119 (2d Cir. 2010)). “[T]he conduct complained of must be severe or pervasive
enough that a reasonable person would find it hostile or abusive, and the victim must subjectively
perceive the work environment to be abusive.” Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113
(2d Cir. 2015) (quoting Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (alteration in
original)). We consider the following factors to determine whether an environment is hostile or
abusive: “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
In support of her hostile work environment claim, apart from her testimony about Syed’s
comment (which we disallow because of her prior denial), Rodriguez points to alleged comments
by various County employees regarding her Haitian national origin, and asserts – primarily based
on conversations that she had with co-workers – that McRae told employees not to work with her
and pressured employees to file false reports of misconduct against her in order to get her fired.
When viewing the evidence presented as a whole and in the light most favorable to
Rodriguez, we find that the alleged incidents were not sufficiently severe or pervasive to establish
a hostile work environment based on gender or national origin. With respect to the handful of
comments made over a decade, they are too few and too isolated to materially alter her working
conditions. With respect to McRae having instructed others not to work with her and to file false
reports about her, her only evidence about such instructions was inadmissible hearsay. Her
evidence, furthermore, did not show that any false memoranda were actually filed against her and,
in any event, she stated in her affidavit that “[t]here are no write ups in my file regarding me not
doing my assigned tasks.” App’x at 1134.
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Finally, the only admissible evidence Rodriguez provided indicating her colleagues refused
to work with her was an affidavit from another employee claiming that McRae instructed the
employee “to no longer work with Ms. Rodriguez anymore because she has a lawsuit against the
County.” App’x at 1139. But this evidence failed to show that such actions were taken because
of Rodriguez’s gender and/or national origin. See Alfano, 294 F.3d at 374 (stating that “it is
‘axiomatic’ that in order to establish a sex-based hostile work environment under Title VII, a
plaintiff must demonstrate that the conduct occurred because of her sex” (quoting Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir. 2001))). In her brief on appeal, she merely states that the
“false reports of misconduct perpetrated by Mr. McRae [are] an attempt to discredit her,” rather
than on the basis of her gender or national origin. Appellant Br. at 29-30 (emphasis added).
Accordingly, we agree with the district court that Rodriguez has not produced sufficient
competent evidence to create a material issue of fact as to the existence of a hostile work
environment attributable to discrimination based on gender national origin.
3. Retaliation
Finally, with respect to Rodriguez’s claim of retaliation against her for her filing of a
complaint with the New York State Division of Human Rights and other complaints she made
during her time at the Commission, we agree with the district court that she has failed to adduce
sufficient evidence of an adverse employment action to survive summary judgment. The
Supreme Court has defined an “adverse employment action” in the Title VII retaliation context to
mean an action that is “materially adverse” and that “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks omitted). Here, Rodriguez makes only
vague and conclusory allegations regarding negative impacts on training and supervisory
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responsibilities, as well as alleged exclusion from meetings. Her generalized statements about
adverse actions were insufficient to create an issue of fact that precluded summary judgment on
the retaliation claim. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010)
(stating that “a plaintiff must provide more than conclusory allegations to resist a motion for
summary judgment”). And at any rate, the record indicates that the only supervisory
responsibility that Rodriguez claims to have lost was that of monitoring staff attendance, App’x at
196, and that she was never prevented from ultimately attending any training she requested to
attend, App’x at 970, 1015. Accordingly, the district court correctly granted summary judgment
for the County on the retaliation claim.
* * *
We have considered all of Rodriguez’s remaining arguments and find them to be without
merit. For the foregoing reasons, we accordingly AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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