12-4142-cv Ross v. New Canaan Environmental Commission UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

### SUMMARY ORDER Rulings by summary order do not have precedential effect. Ci tation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Pr ocedure 32.1 and this court’s Lo cal Rule 32.1.1. When citing a summary order in a document filed with this court, a pa rty must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citinga 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, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 18 thday of September, two thousand thirteen. 3 4 PRESENT: 5 6 GUIDO C ALABRESI , 7 D EBRA ANN L IVINGSTON , 8 D ENNY C HIN , 9 10 Circuit Judges

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_______________________________________________ 12 13 C RISTINA R OSS , 14 15 Plaintiff-Appellant , 16 -v.- No. 12-4142-cv 17 18 NEW C ANAAN ENVIRONMENTAL C OMMISSION , * 19 Defendant-Appellee

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_______________________________________________ 21 J OHN R. WILLIAMS , New Haven, CT, for Plaintiff-Appellant

. 22 S COTT R. O UELLETTE , Williams, Walsh & O’Connor, LLC, 23 North Haven, CT, for Defendant-Appellee

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* The Clerk of Court is directed to amend the case caption as set out above. 1UPON DUE CONSIDERATION , it is hereby ORDERED, ADJUDGED , and DECREED 1 that the judgment of the District Court is AFFIRMED. 2 Plaintiff-Appellant Cristina Ross (“Ross”) appeals the judgment and Ruling and Order of the 3 United States District Court for the District of Connecticut (Kravitz, J. ), entered September 10, 4 2012, granting the summary judgment motion of De fendant-Appellee New Canaan Environmental 5 Commission (“NCEC”) and dismissing Ross’s remain ing gender discrimination claim. We assume 6 the parties’ familiarity with the underlying facts and procedural history of the case. 7 “We review a district court’ s grant of summary judgment de novo , construing the evidence 8 in the light most favorable to the non-moving party and drawing all reasonable inferences in its 9 favor.” Allianz Ins. Co. v. Lerner , 416 F.3d 109, 113 (2d Cir. 2005). Summary judgment is 10 appropriate if “the movant shows that there is no genuine dispute as to any material fact and the 11 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “When the moving party 12 has pointed to the absence of evidence to support an essential element on which the party opposing 13 summary judgment has the burden of proof, the opposing party, in order to avoid summary 14 judgment, must show the presence of a genuine issue by coming forward with evidence that would 15 be sufficient, if all reasonable inferences were dr awn in his favor, to establish the existence of that 16 element at trial.” United States v. Rem , 38 F.3d 634, 643 (2d Cir. 1994) (citing inter alia Celotex 17 Corp. v. Catrett , 477 U.S. 317, 322-23 (1986)); see Fed. R. Civ. P. 56(c)(1). 18 Ross alleges that the NCEC discriminated ag ainst her on the basis of her gender when it 19 reviewed her application to conduct regulated activities on her property in New Canaan, 20 Connecticut. Specifically, Ross claims that the NC EC subjected her application to greater scrutiny 21 than those of similarly situated male applicants and that hers was the only application ever denied, 22 in violation of the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983. 23 2“To state a claim for an equal protection viol ation, appellants must allege that a government 1 actor intentionally discriminated against them on the basis of race, national origin or gender.” 2 Hayden v. Cnty. of Nassau , 180 F.3d 42, 48 (2d Cir. 1999). “State action is impermissible if it 3 perpetuates old gender stereotypes by the disparate treatment of similarly situated men and women 4 based on sex.” Zalewska v. Cnty. of Sullivan, N.Y. , 316 F.3d 314, 323 (2d Cir. 2003) (citation 5 omitted). 6 The district court did not err in granting summary judgment for NCEC because the record 7 contains insufficient evidence to create a genuineissue of fact regarding whether NCEC had a 8 discriminatory motive in denying Ross’s applicati on or whether NCEC treated Ross differently from 9 similarly situated male applicants. As the district court correctly observed, the NCEC meeting 10 minutes do not support Ross’s contention that NCEC subjected her application to a higher level of 11 scrutiny, nor do the minutes demonstrate whether the other applicants were, as Ross asserts, 12 similarly situated. In fact, the record s hows that NCEC commissioners considered Ross’s 13 application singularly complex and difficult. See Joint App’x at 155 (“[T]his is one of the most 14 difficult applications that has come before the commission in many years.”); id. at 167 (‘[T]his has 15 been the most difficult application I’ve had to f ace certainly because there certainly are competing 16 issues here.”); id. at 168 (“There’s no question that this is a difficult application.”). Furthermore, 17 a single, stray remark by the NCEC chairman calling Ross a “trifecta” – which plaintiff alleges 18 means a Hispanic, Jewish woman – is not enough to create an inference of discriminatory motive, 19 especially when there is no indication in the record when the comment was made or that it was made 20 in connection with her application, and there is no other evidence in the record, circumstantial or 21 otherwise, of discriminatory intent. Cf. Abdu-Brisson v. Delta Air Lines, Inc. , 239 F.3d 456, 468 (2d 22

3Cir. 2001) (in age discrimination context, recognizi ng that “the stray remarks of a decision-maker, 1 without more” cannot prove a claim of discrimination). 2 In sum, no reasonable jury could have concluded based on the record here that NCEC’s 3 actions with regard to Ross’s application were ba sed on her gender, and the district court properly 4 granted NCEC’s motion for summary judgment. Fo r the foregoing reasons, the judgment of district 5 court is AFFIRMED

. 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8

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