1 

16-3181 

Sandia v. Wal-Mart Stores, East LP

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, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 27th 3 day of October, two thousand seventeen. 

4 

5 PRESENT: 

6 Guido Calabresi, 

Rosemary S. Pooler,1 7 

8 Circuit Judges. 

9 _____________________________________ 

10 

11 Ruben Sandia, 

12 

13 Plaintiff-Appellant, 

14 

15 v. 16-3181 

16 

17 Wal-Mart Stores, East LP, 

18 

19 Defendant-Appellee. 

20 _____________________________________ 

21 

22 

23 FOR PLAINTIFF-APPELLANT: Ruben Sandia, pro se, Schenectady, 

24 NY. 

 

1

 Judge Newman, a member of the original panel, subsequently recused himself. Therefore, this 

case is decided by the two remaining members of the panel pursuant to Internal Operating 

Procedure E(b) of the Rules of the United States Court of Appeals for the Second Circuit. 
2 

25 

26 FOR DEFENDANT-APPELLEE: Joseph J. Ortego, Nixon Peabody 

27 LLP (Juan Luis Garcia-Paz, on the 

28 brief), Jericho, NY. 

29 

30 Appeal from a judgment of the United States District Court for the Northern District of 

31 New York (Sharpe, J.; Baxter, M.J.). 

32 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

33 DECREED that the judgment of the district court is AFFIRMED. 

34 Appellant Ruben Sandia, proceeding pro se, appeals from the district court’s grant of 

35 summary judgment in favor of Wal-Mart, his former employer, on his claims of racial and national 

36 origin discrimination, retaliation, and a hostile work environment in violation of Title VII of the 

37 Civil Rights Act of 1964. Sandia also challenges the denial of his motion for leave to file a second 

38 amended complaint. We assume the parties’ familiarity with the underlying facts, the procedural 

39 history of the case, and the issues on appeal. 

40 We review de novo a district court’s grant of summary judgment, with the view that 

41 summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to 

42 any material fact and the movant is entitled to judgment as a matter of law.” Sousa v. Marquez, 702 

43 F.3d 124, 127 (2d Cir. 2012) (citing Fed.R.Civ.P. 56(a)) (internal quotation marks omitted). We 

44 review a district court’s denial of leave to amend for abuse of discretion. Holmes v. Grubman, 568 

45 F.3d 329, 334 (2d Cir. 2009). 

46 Upon review, we conclude that the district court properly granted summary judgment on 

47 Sandia’s discrimination, retaliation, and hostile work environment claims. We affirm for 

48 substantially the reasons stated by the district court in its thorough August 18, 2016 decision. 
3 

49 Sandia has failed to provide evidence in support of the various elements of his claims, and his 

50 general reliance on conclusory allegations and speculation is insufficient to overcome summary 

51 judgment. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). 

52 The denial of leave to amend the complaint to add claims of defamation and intentional 

53 infliction of emotional distress was not an abuse of discretion because the proposed amendments 

54 would have been futile. Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011). To support a claim 

55 of defamation under New York law, a plaintiff must allege “that the defendant published to a third 

56 party a defamatory statement of fact that was false, was made with the applicable level of fault, and 

57 either was defamatory per se or caused the plaintiff special harm, so long as the statement was not 

58 protected by privilege.” Chandok v. Klessig, 632 F.3d 803, 814 (2d Cir. 2011). Here, Sandia’s 

59 speculation that Wal-Mart may have spoken to Sandia’s prospective employer fails to plausibly 

60 allege that Wal-Mart made a false statement, unprotected by the qualified privilege generally 

61 afforded to communications between a plaintiff’s former and prospective employers. See Boyd v. 

62 Nationwide Mutual Insurance Co., 208 F.3d 406, 409-10 (2d Cir. 2000); Serratore v. American 

63 Port Services, Inc., 739 N.Y.S.2d 452 (2d Dep’t 2002). Moreover, Sandia failed to state a plausible 

64 intentional infliction of emotional distress claim because he failed to allege conduct so 

65 “outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency 

66 to be regarded as atrocious, and utterly intolerable in a civilized society.” Stuoto v. Fleishman, 164 

67 F.3d 820, 827 (2d Cir. 1999); see also Howell v. N.Y. Post Company, Inc., 81 N.Y.2d 115, 122 (Ct. 

68 App. 1993). 

69 

70 
4 

71 We have considered Sandia=s remaining arguments and find them to be without merit. 

72 Accordingly, we AFFIRM the judgment of the district court. 

73 FOR THE COURT: 

74 Catherine O=Hagan Wolfe, Clerk