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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 27 th day of October, two thousand seventeen. 3 4 PRESENT: 5 Guido Calabresi, 6 Rosemary S. Pooler, 1 7 Circuit Judges. 8

_____________________________________ 9 10 Ruben Sandia, 11 12 Plaintiff-Appellant , 13 14 v. 16-3181 15 16 Wal-Mart Stores, East LP, 17 18 Defendant-Appellee

. 19

_____________________________________ 20 21 22 FOR PLAINTIFF-APPELLANT: Ruben Sandia, pro se, Schenectady, 23 NY. 24

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 Stat es Court of Appeals fo r the Second Circuit.2 25 FOR DEFENDANT-APPELLEE: Joseph J. Ortego, Nixon Peabody 26 LLP (Juan Luis Garcia-Paz, on the 27 brief ), Jericho, NY. 28 29 Appeal from a judgment of the United States Di strict Court for the Northern District of 30 New York (Sharpe, J .; Baxter, M.J. ). 31
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 32 DECREED that the judgment of the district court is AFFIRMED

. 33 Appellant Ruben Sandia, proceeding pro se, a ppeals from the district court’s grant of 34 summary judgment in favor of Wal-Mart, his former employer, on his claims of racial and national 35 origin discrimination, retaliation, and a hostile work envi ronment in violation of Title VII of the 36 Civil Rights Act of 1964. Sandia also challenges the denial of his mo tion for leave to file a second 37 amended complaint. We assume the parties’ familia rity with the underlying facts, the procedural 38 history of the case, a nd the issues on appeal. 39 We review de novo a district court’s grant of summary judg ment, with the view that 40 summary judgment is appr opriate only “if the movant shows that there is no genuine dispute as to 41 any material fact and the movant is en titled to judgment as a matter of law.” Sousa v. Marquez , 702 42 F.3d 124, 127 (2d Cir. 2012) (citing Fed.R.Civ.P. 56( a)) (internal quotation marks omitted). We 43 review a district court’s denial of l eave to amend for a buse of discretion. Holmes v. Grubman , 568 44 F.3d 329, 334 (2d Cir. 2009). 45 Upon review, we conclude that the district court properly granted summary judgment on 46 Sandia’s discrimination, retaliation, and hostil e work environment claims. We affirm for 47 substantially the reasons stated by the distri ct court in its thorough August 18, 2016 decision. 483 Sandia has failed to provide evid ence in support of the various elements of his claims, and his 49 general reliance on conclusory a llegations and speculation is insufficient to overcome summary 50 judgment. Jeffreys v. City of New York , 426 F.3d 549, 554 (2d Cir. 2005). 51 The denial of leave to amend the complaint to add claims of defamation and intentional 52 infliction of emotional distress was not an abus e of discretion because the proposed amendments 53 would have been futile. Hill v. Curcione , 657 F.3d 116, 123-24 (2d Cir. 2011). To support a claim 54 of defamation under New York law, a plaintiff must allege “that the defendant published to a third 55 party a defamatory statement of fact that was false, was made with the applicable level of fault, and 56 either was defamatory per se or caused the plainti ff special harm, so long as the statement was not 57 protected by privilege.” Chandok v. Klessig , 632 F.3d 803, 814 (2d Cir. 2011). Here, Sandia’s 58 speculation that Wal-Mart may have spoken to Sa ndia’s prospective employer fails to plausibly 59 allege that Wal-Mart made a false statement, unprotected by the qualified privilege generally 60 afforded to communications between a plai ntiff’s former and prospective employers. See Boyd v. 61 Nationwide Mutual Insurance Co. , 208 F.3d 406, 409-10 (2d Cir. 2000); Serratore v. American 62 Port Services, Inc. , 739 N.Y.S.2d 452 (2d Dep’t 2002). Moreover, Sandia failed to state a plausible 63 intentional infliction of emotional distress cl aim because he failed to allege conduct so 64 “outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency 65 to be regarded as atrocious, and utte rly intolerable in a civilized society.” Stuoto v. Fleishman , 164 66 F.3d 820, 827 (2d Cir. 1999); see also Howell v. N.Y. Post Company, Inc. , 81 N.Y.2d 115, 122 (Ct. 67 App. 1993). 68
69 704 We have considered Sandia = s remaining arguments and find them to be without merit. 71 Accordingly, we AFFIRM the judgment of the district court. 72
FOR THE COURT: 73 Catherine O = Hagan Wolfe, Clerk 74