1

12

- 3755

- cv

Albert

- Roberts v. GGG Construction, LLC

1

UNITED STATES COURT OF APPEALS 2

FOR THE SECOND CIRCUIT 3

4



## SUMMARY ORDER 5

6

Rulings by summary order do not have precedential effect. Citation to a summary 7

order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of 8

Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order 9

in a document filed with this court, a party must cite either the Federal Appendix or an 10

electronic database (with the notation “s ummary order”). A party citing a summary order 11

must serve a copy of it on any party not represented by counsel. 12

13

At a stated term of the United States Court of Appeals for the Second Circuit, held at 14

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 15

York, on the 5 th day of November , two thousand and thirteen. 16

17

PRESENT: 18

19

J OHN M. W ALKER

, J R

. , 20

J OSÉ A. C ABRANES

, 21

R

AYMOND J. L OHIER

, J R

. , 22

Circuit Judges

. 23

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 24

V ERONICA A LBERT

- R OBERTS

, 25

26

Plaintiff

- Appellant

, 27

28

- v.

- No. 12

- 3755

- cv 29

30

GGG C ONSTRUCTION

, LLC, G ORDON D RUCKER

, E ILEEN 31

M C F

ADDEN

, 32

33

Defendant s

- Appell ees

. 34

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 35

36

FOR PLAINTIFF

- APPELLANT : Joseph A. Gawlowicz

, Brown & Hutchinson, 37

Rochester , NY

. 38

39

FOR APPELLEE : Scott M. Green, Rochester, NY

. 40

41

Appeal from the judgment , entered August 17 , 2012

, of the United States Di strict Court for 42

the Western District of New York ( Michael A. Telesca

, Judge

). 432

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 44

AND DECREED that the August 17, 2012, judgment of the District Court be AFFIRMED

. 45

Plaintiff

- appellant Veronica Albert

- Rob erts appeals from a judgment of the District Court 46

granting summary judgment and dismissing her complaint in its entirety

. She brought claims of 47

employment discrimination under 42 U.S.C. § 1981 and the New York State Human Rights Law 48

(“ NYS HRL”), N.Y. Exec . Law § § 290 et seq. 1 Specifically, she alleged race

- based discrimination in the 49

form of a hostile work environment and retaliation. By order dated August 16, 2012, the District 50

Court granted summary judgment for defendants

- appellees GGG C onstruction, LLC, Gordon 51

Drucker, and Eileen McFadden (collectively

, “ GGG”). We assume the parties’ familiarity with the 52

underlying facts, procedural history, and spe cification of issues for review, w hich we reference only 53

as necessary to explain o ur decision to affirm

. 54

We review an order granting summary judgment de novo , “resolving all ambiguities and 55

drawing all permissible factual inferences in favor of the party against whom summary judgment is 56

sought.” Burg v. Gosselin , 591 F.3d 95, 97 (2d Ci r. 2010) (internal quotation marks omitted); see also 57

Fed. R. Civ. P. 56. 58

A. Hostile Work Environment 59

To state a claim for a hostile work environment under section 1981, 2 a plaintiff must show 60

that the complained

- of conduct: (1) is objectively severe or perv asive; (2) creates an environment 61

that the plaintiff herself subjectively perceives as hostile or abusive; and (3) creates such an 62

environment because of the plaintiff ’ s race

. Patane v. Clark , 508 F.3d 106, 113 (2d Cir. 2007) ; s ee also 63

Fincher v. Deposito ry Trust & Clearing Corp. , 604 F.3d 712, 724 (2d Cir. 2010)

. Conduct alleged to have 64

created a hostile work environment “must be more than episodic; [it] must be sufficiently 65

continuous and concerted in order to be deemed pervasive.” Alfano v. Costello

, 294 F.3d 365, 374 (2d 66

Cir. 2002) (internal quotation marks omitted). 67

Albert

- Roberts’s allegations consist of several incidents involving defendant McFadden (a 68

co

- worker)

, the most severe of which is a single use by McFadden of the word “nigger” to 69

plaintif

f ’ s husband in September 2009

. (Albert

- Roberts was not present for the incident.) The 70

others involve occasionally moving cleaning supplies to make it difficult for plaintiff to do her job 71

and implying that plaintif f wa s stealing cleaning supplies. In co nsidering a motion for summary 72

judgment, t he district court properly required Albert

- Roberts to adduce admissible evidence 73

1 Albert

- Roberts also originally brought claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12112 et seq. , and

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq. The District Court granted summary judgment

to defendants as to these claims, and plaintiff does not appeal their dismissal.

2 Because the applicable legal standards are essentially the same, see Hicks v. Baines , 593 F.3d 159, 164 (2d Cir. 2010);

Patterson v. Cnty

. of Oneida , 375 F.3d 206, 225 (2d Cir. 2004), we need not discuss the federal and state claims

separately.3

showing that her workplace was so “permeated with discriminatory intimid ation, ridicule, and 74

insult . . . [ as ] to alter the condition s of [her] employment.” Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 75

(1993) (internal quotation marks omitted)

. Absent such a showing , i t correctly concluded that 76

plaintiff had not made out a prima facie case of a hostile work environment, because her allegations 77

do not rise to the level of frequency or severity necessary to establish such a claim. 78

R elying on our unpublished summary order in La Grande v. DeCrescente Distrib uting Co. , 370 F. 79

App’ x 206, 210 (2d Cir. 2010)

, plaintiff argues that the single use of the word “nigger” is so severe 80

as to make out a prima facie case and survive summary judgment. Although o rdinarily a race

- based 81

hostile work environment claim must involve “more than a few isol ated incidents of racial enmity, ” 82

Williams v. Cnty. of Westchester , 171 F.3d 98, 100 (2d Cir. 1999) ( internal quotation marks omitted), “ a 83

hostile work environment can also be established through evidence of a single incident of 84

harassment th at is extraordinarily severe

, ” Fincher , 604 F.3d at 724 (internal qu otation mark s 85

omitted). That is not the case here. In La Grande , we found that allegations of four instances of a 86

company manager calling the plaintiff a “nigger,” coupled with threats of physical violence and 87

other racial slurs, were sufficient to survi ve a motion to dismiss. 370 F. App’x at 210

– 11. Albert

88

Roberts’s allegations do not rise to that level and, even viewing all facts in the light most favorable to 89

her, cannot sustain a hostile work environment claim

. There may well exist circumstances wh ere a 90

single use of the word “nigger” would rise to the level of a hostile work environment, but on the 91

facts present here, this is not such a case

. The District Court was correct to grant summary 92

judgment in defendants’ favor. 93

B. Retaliation 94

We analyze § 19 81 retaliation claims under the familiar burden

- shifting framework set forth 95

in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). See Fincher , 604 F.3d at 720. 96

Albert

- Roberts complained to her supervisor, defendant Drucker

, of McFadden’s use o f the 97

word “nigger” in late September 2009. She then filed an EEOC complaint, signed October 19, 98

2009. She was terminated on October 20, 2009. 3 For the purposes of summary judgment, the 99

parties and the District Court assumed that Albert

- Roberts had made out a prima facie case under 100

McDonnell

- Douglas ’s burden

- shifting framework

. In response, defendants put forward a legitimate, 101

nondiscriminatory reason for her termination

— namely, that GGG had already decided to outsource 102

the building’s cleaning services. Albert

- Roberts contends this was a pretext. 103

The District Court was correct to dismiss plaintiff ’s retaliation claims, because her 104

arguments of pretext are belied by the record. Drucker testified at his deposition that he had 105

decided to “ outsource ” the cleaning “months before,” and produced proposals from different 106

3 The record is contradictory as to whether Albert

- Roberts was terminated on Oc tober 20 or October 21, 2009.

Viewing the facts in the light most favorable to the plaintiff, we assume it was October 20, but the precise date does

not affect our conclusion.4

outsourcing companies. Although he had initially anticipated hiring a new cleaning service 107

beginning in January 2010, he chose to outsource earlier after Albert

- Roberts was in a car accident 108

on October 19 , 2009, and was unable to work. Drucker outsourced the cleaning staff

— and 109

terminated plaintiff

— the next day

. Albert

- Roberts has offered nothing aside from her own 110

conclusory affidavit to rebut this testimony. In fact, i n her EEOC complaint

, she acknowledged the 111

planned outsourcing: “ [I] t has been shown that the cleaning crew will be replace[d] with an 112

outsource company. The potential bidders came for a visit two times.” 113

Having reviewed the record

, we agree with the District Court that A lbert

- Roberts has not 114

rebutted defendants’ legitimate, nondiscriminatory reason for her termination. 115

CONCLUSION 116

We have revi ewed the record and the parties’ arguments on appeal. For the reasons set out 117

above, we AFFIRM the judgment of the District Court

, entered August 17 , 2012

. 118

FOR THE COURT, 119

Catherine O’Hagan Wolfe, Clerk of Court 120

121