1

12-3755-cv

Albert-Roberts v. GGG Construction, LLC

1

2 UNITED STATES COURT OF APPEALS

3 FOR THE SECOND CIRCUIT

4

5 SUMMARY ORDER

6

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

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

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

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

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

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

13

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

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

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

17

18 PRESENT:

19

20 JOHN M. WALKER, JR.,

21 JOSÉ A. CABRANES,

22 RAYMOND J. LOHIER, JR.,

23 Circuit Judges.

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25 VERONICA ALBERT-ROBERTS,

26

27 Plaintiff-Appellant,

28

29 -v.- No. 12-3755-cv

30

31 GGG CONSTRUCTION, LLC, GORDON DRUCKER, EILEEN 

32 MCFADDEN,

33

34 Defendants-Appellees.

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36

37 FOR PLAINTIFF-APPELLANT: Joseph A. Gawlowicz, Brown & Hutchinson, 

38 Rochester, NY.

39

40 FOR APPELLEE: Scott M. Green, Rochester, NY.

41

42 Appeal from the judgment, entered August 17, 2012, of the United States District Court for 

43 the Western District of New York (Michael A. Telesca, Judge).
2

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

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

46 Plaintiff-appellant Veronica Albert-Roberts appeals from a judgment of the District Court

47 granting summary judgment and dismissing her complaint in its entirety. She brought claims of

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

(“NYSHRL”), N.Y. Exec. Law §§ 290 et seq.149 Specifically, she alleged race-based discrimination in the 

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

51 Court granted summary judgment for defendants-appellees GGG Construction, LLC, Gordon 

52 Drucker, and Eileen McFadden (collectively, “GGG”). We assume the parties’ familiarity with the 

53 underlying facts, procedural history, and specification of issues for review, which we reference only 

54 as necessary to explain our decision to affirm.

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

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

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

58 Fed. R. Civ. P. 56. 

59 A. Hostile Work Environment

To state a claim for a hostile work environment under section 1981,260 a plaintiff must show 

61 that the complained-of conduct: (1) is objectively severe or pervasive; (2) creates an environment 

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

63 environment because of the plaintiff’s race. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007); see also

64 Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 724 (2d Cir. 2010). Conduct alleged to have 

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

66 continuous and concerted in order to be deemed pervasive.” Alfano v. Costello, 294 F.3d 365, 374 (2d 

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

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

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

70 plaintiff ’s husband in September 2009. (Albert-Roberts was not present for the incident.) The 

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

72 and implying that plaintiff was stealing cleaning supplies. In considering a motion for summary 

73 judgment, the district court properly required Albert-Roberts to adduce admissible evidence 

 

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

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

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

76 (1993) (internal quotation marks omitted). Absent such a showing, it correctly concluded that 

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

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

79 Relying on our unpublished summary order in La Grande v. DeCrescente Distributing Co., 370 F. 

80 App’x 206, 210 (2d Cir. 2010), plaintiff argues that the single use of the word “nigger” is so severe 

81 as to make out a prima facie case and survive summary judgment. Although ordinarily a race-based 

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

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

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

85 harassment that is extraordinarily severe,” Fincher, 604 F.3d at 724 (internal quotation marks 

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

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

88 other racial slurs, were sufficient to survive a motion to dismiss. 370 F. App’x at 210–11. Albert89 Roberts’s allegations do not rise to that level and, even viewing all facts in the light most favorable to 

90 her, cannot sustain a hostile work environment claim. There may well exist circumstances where a 

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

92 facts present here, this is not such a case. The District Court was correct to grant summary 

93 judgment in defendants’ favor.

94 B. Retaliation

95 We analyze § 1981 retaliation claims under the familiar burden-shifting framework set forth 

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

97 Albert-Roberts complained to her supervisor, defendant Drucker, of McFadden’s use of the 

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

2009. She was terminated on October 20, 2009.399 For the purposes of summary judgment, the 

100 parties and the District Court assumed that Albert-Roberts had made out a prima facie case under 

101 McDonnell-Douglas’s burden-shifting framework. In response, defendants put forward a legitimate, 

102 nondiscriminatory reason for her termination—namely, that GGG had already decided to outsource 

103 the building’s cleaning services. Albert-Roberts contends this was a pretext. 

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

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

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

 

3 The record is contradictory as to whether Albert-Roberts was terminated on October 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.
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107 outsourcing companies. Although he had initially anticipated hiring a new cleaning service 

108 beginning in January 2010, he chose to outsource earlier after Albert-Roberts was in a car accident

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

110 terminated plaintiff—the next day. Albert-Roberts has offered nothing aside from her own 

111 conclusory affidavit to rebut this testimony. In fact, in her EEOC complaint, she acknowledged the 

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

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

114 Having reviewed the record, we agree with the District Court that Albert-Roberts has not 

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

116 CONCLUSION

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

118 above, we AFFIRM the judgment of the District Court, entered August 17, 2012. 

119 FOR THE COURT,

120 Catherine O’Hagan Wolfe, Clerk of Court

121