16-971-cv 

Alvarado v. Nordstrom, Inc., et al. 

 

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 “SUMMARY ORDER”). A PARTY CITING 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, held at the 

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

29th day of March, two thousand seventeen. 

Present: ROBERT A. KATZMANN, 

 Chief Judge, 

 ROSEMARY S. POOLER, 

 GERARD E. LYNCH, 

 Circuit Judges. 

_____________________________________________________ 

EDUARDO ALVARADO, 

 Plaintiff-Appellant, 

 v. 16-971-cv 

NORDSTROM, INCORPORATED, JEFFREY, INC., 

 Defendants-Appellees.

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_____________________________________________________ 

 

Appearing for Appellant: Anne C. Vladeck (Rebecca J. Osborne, on the brief), Vladeck, 

Raskin & Clark, P.C., New York, NY. 

Appearing for Appellees: James W. Weller, Nixon Peabody LLP, Jericho, NY. 

 Appeal from the United States District Court for the Southern District of New York 

(Buchwald, J.). 

 

1 The Clerk of Court is respectfully directed to amend the caption as above.
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ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in 

part, VACATED in part, and REMANDED. 

 Plaintiff-Appellant Eduardo Alvarado appeals from the March 7, 2016 judgment of the 

United States District Court for the Southern District of New York (Buchwald, J.) granting 

summary judgment in favor of Defendants-Appellees Nordstrom, Incorporated (“Nordstrom”) 

and Jeffrey, Inc. (“Jeffrey”) (collectively “Defendants”) on Alvarado’s racial discrimination 

claim under Section 1981 of the Civil Rights Act of 1866 (“Section 1981”) and Alvarado’s racial 

and sexual orientation discrimination claims under the New York State Human Rights Law 

(“NYSHRL”) and New York City Human Rights Law (“NYCHRL”). Alvarado v. Jeffrey, Inc., 

149 F. Supp. 3d 486, 489 (S.D.N.Y. 2016). We assume the parties’ familiarity with the 

underlying facts, procedural history, and specification of issues for review. 

 “We review a district court’s grant of summary judgment de novo.” Marvel Characters, 

Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013) (internal quotation marks omitted). 

 As both parties to this lawsuit agree, Section 1981 and NYSHRL hostile work 

environment claims are governed by the same substantive standard. See Tolbert v. Smith, 790 

F.3d 427, 439 (2d Cir. 2015) (“Hostile work environment claims under Title VII and the 

NYSHRL are governed by the same standard.”); Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 

151 n.6 (2d Cir. 2014) (stating the substantive standards under Title VII and Section 1981 are 

similar, while noting that only Section 1981 “permits a plaintiff . . . to sue persons other than 

employers”). “To establish a prima facie case of hostile work environment, the plaintiff must 

show that the discriminatory harassment was sufficiently severe or pervasive to alter the 

conditions of the victim’s employment and create an abusive working environment, and that a 

specific basis exists for imputing the objectionable conduct to the employer.” Tolbert, 790 F.3d 

at 439 (internal quotation marks omitted). “As a general rule, incidents must be more than 

episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. 

Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness.” Id.

(internal quotation marks omitted). Nonetheless, “prior derogatory comments by a co-worker 

may permit an inference that further abusive treatment by the same person was motivated by the 

same []bias manifested in the earlier comments.” Raniola v. Bratton, 243 F.3d 610, 622 (2d Cir. 

2001). Even a single incident of verbal harassment may be sufficient to indicate that further 

harassment by that co-worker was based on the protected characteristic and thus contributed to a 

hostile work environment. Id. (citing Howley v. Town of Stratford, 217 F.3d 141, 156 (2d Cir. 

2000)).

 As the district court correctly observed, Alvarado’s hostile work environment claims are 

based on three comments made by three co-workers over the course of approximately one year. 

Alvarado, 149 F. Supp. 3d at 494. 

 Alvarado first argues that a racially-charged comment by Keisha Daniel, a straight, 

African-American colleague, along with her continued verbal and allegedly physical harassment 

of him makes his situation akin to the one in Howley. In Howley, this Court held that one 
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incident of verbal harassment was sufficient, considering the totality of the circumstances, to 

have “intolerably altered [the plaintiff’s] work environment” since the comment at issue was 

obscene, was made “at length, loudly, and in a large group” of the victim’s co-workers and 

subordinates, and explicitly stated the victim had advanced in her career “only by performing 

fellatio” on her male colleagues. Howley, 217 F.3d at 154. Here, Daniel’s comment does not rise 

to that standard. The comment, while inappropriate and racially-charged, was not alleged to have 

been made loudly in front of all of Alvarado’s co-workers, is not obscene, and does not impugn 

Alvarado’s ability to do his job. Further, Alvarado did not originally mention the comment to 

John Seery, the store manager, when Alvarado complained about Daniel’s behavior that day, and 

Alvarado later stated to Seery that he had not been offended by the comment (which likely 

explains why he did not originally report it). In addition, there is substantial evidence in the 

record that Daniel’s harassing behavior was not only directed at Alvarado but also at other coworkers, including African-American co-workers, which suggests that Daniel’s behavior was not 

racially-motivated but was simply the result of her being a combative individual. 

 Alvarado next argues that the three comments together, along with all the other 

circumstances supported by the evidence, rise to the level of “severe and pervasive” behavior 

sufficient to state a claim for a hostile work environment. We do not agree. Daniel’s harassing 

behavior cannot be imputed to Lamar Lawrence and Kenya Dalrymple, two straight, AfricanAmerican colleagues, neither of whom are alleged to have engaged in further altercations with 

Alvarado beyond the single instance raised. See Raniola, 243 F.3d at 622 (“[P]rior derogatory 

comments by a co-worker may permit an inference that further abusive treatment by the same 

person was motivated by the same []bias manifested in the earlier comments.” (emphasis 

added)). Alvarado seeks to have this Court hold that the environment at Jeffrey was hostile based 

on one race-based comment by Daniel, Daniel’s inappropriate behavior which she directed at 

numerous other colleagues including colleagues who were African-American and straight, one 

allegedly sexual-orientation-based comment by Lawrence, and one allegedly sexual-orientationbased comment by Dalrymple toward another colleague over the course of approximately one 

year. This we cannot do. Alvarado has not provided us with a sufficient basis to infer that the 

treatment he suffered was severe and pervasive on the basis of his race and sexual orientation. 

Accordingly, we affirm the district court’s decision with respect to Alvarado’s Section 1981 and 

NYSHRL racial discrimination claims. 

 Section 1981 and NYSHRL retaliation claims are analyzed under the same three-step 

burden shifting framework derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

05 (1973) as are Title VII claims. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) 

(explaining that retaliation claims under Title VII, Section 1981, and NYSHRL are all “analyzed 

pursuant to Title VII principles”). Under this framework, “‘but-for’ causation does not require 

proof that retaliation was the only cause of the employer’s action, but only that the adverse 

action would not have occurred in the absence of the retaliatory motive.” Zann Kwan v. Andalex 

Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013). 

 We agree with the district court that the only potentially actionable adverse employment 

action Alvarado suffered in retaliation for his filing of an Internal Review form was his 2012 

written warning for the incidents between him and Daniel and between him and Josh Gonzales, a 

Hispanic store manager at Jeffrey. Alvarado, 149 F. Supp. 3d at 498; see generally Millea v. 
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Metro-North R.R. Co., 658 F.3d 154, 164-65 (2d Cir. 2011) (suggesting that a written reprimand 

can constitute a materially adverse employment action under certain circumstances). Alvarado’s 

strongest argument for finding that the 2012 written reprimand was pretext for retaliation is that 

the written reprimand was the product of disparate treatment between himself and Daniel, his 

alleged comparator who did not receive a written reprimand. This claim boils down to a question 

of whether Alvarado and Daniel are sufficiently similar in their history of altercations and 

insubordinate behavior that Alvarado’s treatment can be attributed to his filing of an Internal 

Review form (in which he and Daniel differ) rather than attributed to his behavior (in which he 

and Daniel, Alvarado contends, do not differ). 

 The record lacks sufficient support for Alvarado’s argument under the but-for causation 

standard of Section 1981 and NYSHRL. Alvarado points to numerous instances of small acts of 

insubordination by Daniel, but he does not point to any evidence that would suggest any of these 

instances involved shouting or aggression towards a manager on the salesfloor comparable to 

Alvarado’s incident with Gonzales. The most similar instance, which is Daniel’s interaction with 

Cara Smyth, Jeffrey’s customer service manager, involved Daniel muttering something under her 

breath about Smyth while on the salesfloor and then denying that she had said anything. While 

there is little doubt that Daniel engaged in insubordinate conduct numerous times in the past, 

Gonzales described Alvarado as being “aggressive, assertive, dismissive[,] and insubordinate” 

towards Gonzales during their altercation on the Jeffrey salesfloor, and alleged that Alvarado put 

his thumb in Gonzales’s face. App’x at 552. We conclude that Alvarado cannot rely on 

allegations of disparate treatment to support his retaliation claim because he has failed to show 

that he and Daniel are sufficient comparators when it comes to their actions of insubordination 

under the causation standard applicable to Section 1981 and NYSHRL claims. Accordingly, we 

affirm the decision of the district court with respect to Alvarado’s Section 1981 and NYSHRL 

retaliation claims. 

 When an individual has failed to establish any claim under Section 1981 and NYSHRL, 

his claim of constructive discharge based on those claims must also fail. Fincher v. Depository 

Tr. & Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010). Accordingly, we affirm the decision of 

the district court with respect to Alvarado’s constructive discharge claim. 

 In order to succeed on a NYCHRL hostile work environment claim, a plaintiff must show 

that he was treated “less well than other employees” on the basis of a protected characteristic. 

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013). Under the 

NYCHRL, an “employer may prevail on summary judgment if it shows that a reasonable jury 

could conclude only that the conduct amounted to no more than a petty slight. Thus, courts may 

still dismiss truly insubstantial cases[] where the defense is clear as a matter of law.” Id. at 111 

(internal quotation marks and citation omitted). 

 While there is no doubt that the standard for proving a NYCHRL hostile work 

environment claim is lower than the standard for proving Section 1981 and NYSHRL hostile 

work environment claims, the district court did not err in finding that Defendants had met the 

burden of proving their affirmative defense of triviality as a matter of law. Daniel’s one racebased comment against Alvarado is still not enough to render all of her aggressive behavior (to 

which some of her straight, African-American colleagues were also subjected) race-based, and 
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Lawrence’s and Dalrymple’s comments remain merely petty even if they are hurtful. 

Accordingly, we affirm the decision of the district court with respect to Alvarado’s NYCHRL 

hostile work environment claim. 

 In order to succeed on a NYCHRL retaliation claim, a plaintiff “must show that []he took 

an action opposing h[is] employer’s discrimination and that, as a result, the employer engaged in 

conduct that was reasonably likely to deter a person from engaging in such action.” Mihalik, 715 

F.3d at 112 (internal citation omitted). “[N]o challenged conduct may be deemed nonretaliatory 

unless a jury could not reasonably conclude from the evidence that such conduct was reasonably 

likely to deter a person from engaging in protected activity.” Id. (internal quotation marks and 

ellipses omitted). “This assessment should be made with a keen sense of workplace realities, of 

the fact that the chilling effect of particular conduct is context-dependent, and of the fact that a 

jury is generally best suited to evaluate the impact of retaliatory conduct.” Id. (internal quotation 

marks and brackets omitted). Under this standard, “summary judgment is [only] appropriate if 

the record establishes as a matter of law that . . . retaliation played no role in the defendant’s 

actions.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 76 (2d Cir. 2015) (internal quotation 

marks and original brackets omitted; emphasis added). 

 Given that all the NYCHRL requires to survive summary judgment is a showing that 

retaliation plays some role in the adverse employment action, we hold that the question of 

whether Daniel was a sufficiently close comparator to Alvarado such that their disparate 

treatment would show Alvarado’s 2012 written reprimand was pretextual is more appropriately 

one for a fact finder. In reviewing the realities of the Jeffrey’s workplace as shown by the 

evidence presented at summary judgment, written reprimands seem to have been infrequently 

given even for bad behavior in public. For instance, there is no evidence in the record that any 

employees received a written reprimand following the altercation between Alvarado, Daniel, and 

José Bravo, a Hispanic colleague, that Smyth had to break up and which led to Daniel’s 

insubordination towards Smyth on the salesfloor. Even though written reprimands were rarely 

given, and Daniel had engaged in numerous instances of minor insubordinations and other 

combative behavior vis-à-vis her co-workers for which she had received few written reprimands, 

Alvarado immediately received a written reprimand for his single act of insubordination towards 

Gonzales. Viewing the facts pled in the light most favorable to Alvarado and under the 

NYCHRL standard that summary judgment is only appropriate when retaliation plays no role in 

an adverse employment action as a matter of law, we hold that there exists a question of fact for 

a jury to determine as to whether retaliation played some role in Alvarado’s written reprimand. 

Accordingly, we vacate the decision of the district court with respect to Alvarado’s NYCHRL 

retaliation claim, and we remand for further proceedings consistent with the order. 

 Lastly, “[w]e review a district court’s imposition of [or choice not to impose] spoliation 

sanctions under an abuse of discretion standard.” Allstate Ins. Co. v. Hamilton Beach/Proctor 

Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007). “In so doing, we accept the district court’s factual 

findings . . . unless they are clearly erroneous.” Id. The district court determined that there was 

no evidence that a video of the January 18, 2012 incident ever existed and thus no evidence that 

the video had been destroyed. Alvarado, 149 F. Supp. 3d at 493. We hold that this factual finding 

was not clearly erroneous. Accordingly, we hold that the district court did not abuse its discretion 

in determining that Alvarado was not entitled to an adverse inference against Defendants. 
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 We have considered the remainder of Alvarado’s arguments and find them to be without 

merit. Accordingly, the order of the district court hereby is AFFIRMED in part, VACATED in 

part, and REMANDED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk