Fleming v. Maxmara USA, Inc. , 371 F. App'x 115 ( 2010 )

09-3183-cv
Fleming v. Maxmara USA, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 25th day
of March, two thousand ten.
Present:
RALPH K. WINTER
ROBERT A. KATZMANN,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
________________________________________________
YVONNE FLEMING,
Plaintiff-Appellant,
v. No. 09-3183-cv
MAXMARA USA, INC., LUIGI CAROGGIO, JOHN GLEESON,
Defendants-Appellees.
________________________________________________
For Plaintiff-Appellant: DENISE K. BONNAIG , Bonnaig & Associates, New York,
NY
*
The Honorable Jed S. Rakoff, United States District Judge for the Southern District of
New York, sitting by designation.
For Defendants-Appellants: HOLLIS GONERKA BART (Chaya F. Weinberg-Brodt, Alyssa
N. Koerner, on the brief), Withers Bergman, LLP, New
York, NY
Appeal from the United States District Court for the Eastern District of New York
(Sifton, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Yvonne Fleming appeals from a judgment of the United States
District Court for the Eastern District of New York (Sifton, J.) granting summary judgment to
Defendants-Appellees and dismissing Fleming’s discrimination and retaliation claims. Fleming
alleged that defendants discriminated against her on the basis of her race by terminating her and
by creating a hostile work environment, and retaliated by terminating her for complaining that
defendants treated American employees differently than Italian employees by terminating her.
We assume the parties’ familiarity with the facts, procedural history, and scope of the issues
presented on appeal.
Both Fleming’s discrimination and retaliation claims related to her termination are
analyzed using the burden-shifting paradigm articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000); Reed v.
A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (applying to retaliation claims). To
establish a prima facie case of discrimination, a plaintiff must show that: (1) she is a member of
a protected class; (2) she is qualified for the position; (3) she suffered an adverse employment
action; and (4) circumstances surrounding that action give rise to an inference of discrimination.
Collins v. N.Y. City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002). To establish a prima facie
case of Title VII retaliation, a plaintiff must show (1) participation in a protected activity known
to the defendant, (2) an employment action disadvantaging the plaintiff, and (3) a causal
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connection between the protected activity and the adverse employment action. Id.Fleming’s discriminatory termination claim fails because she cannot show the fourth
element of her prima facie case—that the circumstances surrounding her termination give rise to
an inference of discrimination. See Collins, 305 F.3d at 118. While a plaintiff may usually
satisfy this element by showing that she was replaced by someone not in her protected class, see
Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001), Fleming was
replaced by another black female, Lisa Derrick. Fleming argues that Derrick was hired to
disguise defendants’ discriminatory act, but Fleming fails to point to any admissible evidence to
support this assertion. Further, while Fleming points to cases concluding that where a plaintiff is
replaced with a member of her protected class after the filing of a discrimination charge might
suggest a cover-up, see, e.g., Howard v. Roadway Express, Inc., 726 F.2d 1529, 1534-35 (11th
Cir. 1984); Lee v. Conecuh County Bd. of Educ., 634 F.2d 959, 964 (5th Cir. 1981), here Derrick
was hired at the same time that Fleming was fired, before Fleming took any legal action against
defendants.
Fleming’s retaliatory termination claim fails because, even if she can show a prima facie
case of retaliation, defendants have put forth a legitimate, non-discriminatory reason for her
termination, and Fleming has not responded with facts sufficient to warrant a reasonable jury
finding by a preponderance of the evidence that “the legitimate reasons offered by the
defendant[s] were not [their] true reasons, but were a pretext for [retaliation].” Richardson v.
Comm’n on Human Rights & Opportunities, 532 F.3d 114, 125 n.11 (2d Cir. 2008). Defendants
state that Fleming was terminated because they perceived a need to upgrade her position, and
because of their perception that Fleming’s “inappropriate, insensitive, or otherwise
disproportionate conduct towards other employees had demonstrated . . . that she lacked the
judgment needed for the role.” Fleming contends that these reasons are pretextual because they
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are false—she disputes that her behavior was ever inappropriate and asserts that by hiring
Derrick defendants did not upgrade her position.
Fleming’s arguments do not demonstrate that MaxMara’s purported reason for
terminating her was pretextual. Her disagreement with defendants over whether her behavior
was inappropriate does not show that their stated reasons for terminating her were not their true
reasons. Fleming’s email to Haddock alone supports defendants’ assertion that she behaved
inappropriately and unprofessionally. Therefore, even if the facts are in dispute about the
inappropriateness of other incidents, she cannot demonstrate that defendants’ proffered reasons
for her termination were so unfounded that a reasonable jury could conclude that they “were not
the defendant[s’] true reasons, but rather a pretext.” Taitt v. Chem. Bank, 849 F.2d 775, 777 (2d
Cir. 1988). Nor does her disagreement with defendants’ assertion that they upgraded her position
by hiring Derrick establish pretext. Derrick, unlike Fleming, possessed a college degree, and,
more importantly, “it is not the function of a fact-finder to second-guess business decisions.”
Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988); see also Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 259 (1981) (“The fact that a court may think that the employer
misjudged the qualifications of the applicants does not in itself expose him to Title VII
liability.”). Only where an employer’s business decision is so implausible as to call into question
its genuineness should this Court conclude that a reasonable trier of fact could find that it is
pretextual. See Dister, 859 F.2d at 1116. That is not the case here.
Further, while the temporal proximity between the meeting at which Fleming claims to
have complained of unequal treatment of American and Italian employees and her termination
may be sufficient to satisfy the third element of her prima facie case, it is insufficient on its own
to demonstrate that defendants’ legitimate, non-discriminatory explanation for her termination
was pretextual. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 770 (2d Cir. 1998)
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(concluding that plaintiff’s facts were sufficient to warrant a finding of pretext where there was
other circumstantial evidence of pretext in addition to a strong temporal connection).
Fleming’s hostile work environment claim fails because she cannot demonstrate that her
“workplace [was] permeated with ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of [her] employment and create an
abusive working environment.’” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(internal citation omitted). Fleming alleges that Gleeson made a racially harassing comment to
her early in her tenure at MaxMara and followed it by numerous incidents of unfair treatment.
“[W]hether an environment is ‘hostile or abusive’ can be determined only by looking at all the
circumstances.” Id. at 23. “For racist comments, slurs, and jokes to constitute a hostile work
environment, there [generally] must be more than a few isolated incidents of racial enmity . . . .”
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal citation and quotation
marks omitted). However, “even a single episode of harassment, if severe enough, can establish
a hostile work environment.” Richardson v. N.Y. State Dep’t of Corr. Servs., 180 F.3d 426, 437
(2d Cir. 1999), abrogated on other grounds by Burlington N. Santa Fe Ry. Co. v. White, 548 U.S.
53 (2006).
Here, Fleming puts forth evidence of only one incident that is plainly motivated by
race—defendant Gleeson’s 2001 comment. Viewing the facts in the light most favorable to
Fleming and drawing all inferences in her favor, while this comment may be seen as severe, it is
isolated and, standing alone, is not the type of “intolerable alteration” of her working conditions
that substantially interferes with her ability to do her job. Mathirampuzha v. Potter, 548 F.3d 70,
79 (2d Cir. 2008). Instead, we have found a hostile work environment only where such a
racially-harassing comment is one of many racially-motivated comments. See Whidbee v.
Garzarelli Food Specialities, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (concluding that a similar
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racially harassing comment sufficiently demonstrated a hostile work environment where it was
part of a “stream of racially offensive comments” including a “veritable barrage of racial
epithets”). Fleming does not allege any fact to connect this comment to her other allegations of
unfair treatment, which are not facially related to her race. Moreover, her other allegations are
generally quite minor—she alleges that defendants wrongly excluded her from meetings,
excessively criticized her work, refused to answer work-related questions, arbitrarily imposed
duties outside of her responsibilities, threw books, and sent rude emails to her. These incidents
do not support a finding of a hostile work environment that is pervasive or severe. See Harris,
510 U.S. at 21.
The fact that Fleming cannot connect these other incidents of unfair treatment to
Gleeson’s comment also dooms her claim under the New York City Human Rights Law. While
that law does not require the same severity or pervasiveness that federal law requires, see
Williams v. N.Y. City Housing Auth., 872 N.Y.S.2d 27, 31, 38 (App. Div. 1st Dept. 2009), it does
contain a three-year statute of limitations, see N.Y. City Admin. Code § 8-502(d). Gleeson’s
comment was made well outside of this statute of limitations, and Fleming does not provide
evidence of any racially-motivated acts within the three-year statute of limitations.
We have considered the remainder of Fleming’s arguments and conclude that they lack
merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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