Antrobus v. New York City Department of Sanitation

16-3490
Antrobus v. New York City Department of Sanitation
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
3 on the 1st day of December, two thousand seventeen.
4
5 PRESENT:
6 ROSEMARY S. POOLER,
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 Circuit Judges.
10 _____________________________________
11
12 Andre K. Antrobus,
13
14 Plaintiff-Appellant,
15
16 v. 16-3490-cv
17
18
19 New York City Department of Sanitation,
20
21 Defendant-Appellee.
22 _____________________________________
23
24 Appearing for Appellant: Andre K. Antrobus, pro se, White Plains, N.Y.
25
26 Appearing for Appellee: Jeremy W. Shweder, Assistant Corporation Counsel (Pamela
27 Seider Dolgow, Assistant Corporation Counsel, on the brief)
28 for Zachary W. Carter, Corporation Counsel of the City of New
29 York, New York, N.Y.
30
1 Appeal from the United States District Court for the Eastern District of New York (Amon, J.;
2 Bloom, M.J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5
6 Appellant Andre Antrobus, proceeding pro se, appeals the September 26, 2016 decision
7 of the United States District Court for the Eastern District of New York (Amon, J.) adopting the
8 February 25, 2016 report and recommendation of the magistrate judge and granting summary
9 judgment in favor of the defendant, the New York City Department of Sanitation (“DSNY”).
10 Antrobus sued DSNY, his current employer, under Title VII of the Civil Rights Act of 1964,
11 alleging claims of hostile work environment, discrimination on the basis of his race and national
12 origin, failure to promote, and retaliation for filing three discrimination complaints between 2004
13 and 2010. We assume the parties’ familiarity with the underlying facts, the procedural history of
14 the case, and the issues on appeal.
15
16 “We review a grant of summary judgment de novo.” McPherson v. Coombe, 174 F.3d
17 276, 279 (2d Cir. 1999). Summary judgment is appropriate only “if the movant shows that there
18 is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
19 law.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (quoting Federal Rule of Civil
20 Procedure 56(a)). We affirm the grant of summary judgment for substantially the reasons stated
21 by the magistrate judge in her thorough February 25, 2016 report and recommendation.
22
23 With regard to hostile work environment, Antrobus asserted that egregious verbal
24 incidents took place, but they occurred several years beyond the limitations period. Accordingly,
25 those verbal incidents cannot independently support a claim. See 42 U.S.C. § 2000e–5(e)(1).
26 Antrobus did not offer any evidence indicating that the conduct that took place within the
27 limitations period either was motivated by his protected characteristics, or was sufficiently
28 related to the earlier verbal incidents to constitute a continuing violation. See Rivera v. Rochester
29 Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014); McGullam v. Cedar Graphics,
30 Inc., 609 F.3d 70, 75-76 (2d Cir. 2010).
31
32 Antrobus’s discrimination claim also fails because the verbal incidents that he described
33 are beyond the applicable limitations period. Further, with regard to Antrobus’s assertion that he
34 was treated improperly when he was required to work holidays, the record indicates that other
35 employees also worked those holidays. Thus Antrobus has failed to demonstrate that
36 similarly-situated employees received better treatment. See Brown v. Daikin America Inc., 756
37 F.3d 219, 229 (2d Cir. 2014).
38
39 Summary judgment was also proper on the retaliation claim, because Antrobus has not
40 offered any evidence indicating that complaints filed in 2004, 2006, or 2010 caused an adverse
41 employment action. Antrobus points to denial of leave requests in 2010, but the record indicates
42 that the denial was the product of an ongoing effort by his employer to curtail his improperly
43 documented absences. See Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir.
2
1 2001), as amended (June 6, 2001). And Antrobus did not submit evidence indicating that
2 retaliation was “a substantial reason” in denying his request. Hicks v. Baines, 593 F.3d 159, 164
3 (2d Cir. 2010); see also Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 845-47 (2d Cir. 2013).
4
5 Regarding the failure to promote claim, summary judgment was appropriate because
6 Antrobus admitted that many individuals have remained in his same position for over 30 years,
7 and that he has never applied for a promotion. Thus Antrobus failed to make out a prima facie
8 case. See Aulicino v. New York City Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009);
9 Brown v. Coach Stores, Inc., 163 F.3d 706, 709-10 (2d Cir. 1998).
10
11 Antrobus’s remaining claims—violations of 42 U.S.C. § 1981 and the Equal Protection
12 Clause, as well as intentional infliction of emotional distress and complaints relating to drug testing
13 following a DWI—were not raised below, and, accordingly, are barred on appeal. See Harrison v.
14 Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016) (“It is a well-established general rule that an
15 appellate court will not consider an issue raised for the first time on appeal.”) (brackets omitted)
16 (quoting In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008); Bogle–
17 Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006)).
18
19 We have considered all of Antrobus’s remaining arguments and find them to be without
20 merit. Accordingly, we AFFIRM the judgment of the district court.
21
22 FOR THE COURT:
23 Catherine O=Hagan Wolfe, Clerk
3