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 ELECTRON IC 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
29 th 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

. 1

_____________________________________________________

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 Pea body LLP, Jericho, NY.

Appeal from the United States District C ourt for the Southern Di strict of New York (Buchwald, J. ).

1 The Clerk of Court is respectfully di rected to amend the caption as above.2 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 a ppeals from the March 7, 2016 judgment of the
United States District Court for the Sout hern District of New York (Buchwald, J. ) granting summary judgment in favor of Defendants-Appe llees Nordstrom, Incorporated (“Nordstrom”) and Jeffrey, Inc. (“Jeffrey”) (collectively “Def endants”) on Alvarado’s racial discrimination claim under Section 1981 of the Civil Rights Ac t 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 agre e, 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 e nvironment 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 st andards under Title VII and Section 1981 are similar, while noting that only S ection 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 creat e 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 sufficien tly continuous and concerted in or der to be deemed pervasive. Isolated acts, unless very seri ous, 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 tr eatment 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 harassmen t may be sufficient to indicate that further harassment by that co-worker was based on the prot ected 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 correc tly 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-charg ed comment by Keisha Daniel, a straight, African-American colleague, along with her continued verbal a nd allegedly physical harassment
of him makes his situation akin to the one in Howley . In Howley , this Court held that one3 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 vict im’s co-workers and subordinates, and explicitly stat ed 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 inappropriat e and racially-charged, wa s 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, Alvara do did not originally mention the comment to John Seery, the store manager, wh en Alvarado complained about Da niel’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 origina lly report it). In addition, there is substantial evidence in the record that Daniel’s harassing be havior was not only directed at Alvarado but also at other coworkers, including African-American co-workers, wh ich suggests that Daniel’s behavior was not racially-motivated but was simply the resu lt of her being a co mbative 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 furt her 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 infe rence that further abusive treatment by the same

person was motivated by the same []bias manife sted in the earlier comments.” (emphasis added)). Alvarado seeks to have this Court hold that the environm ent at Jeffrey was hostile based on one race-based comment by Daniel, Daniel’s in appropriate behavior which she directed at numerous other colleagues including colleagues who were African-American and straight, one allegedly sexual-orientation-ba sed comment by Lawrence, and one allegedly sexual-orientationbased comment by Dalrymple toward another coll eague 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 d ecision 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 clai ms under Title VII, Section 198 1, 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 th e employer’s action, but only that the adverse
action would not have occurred in th e 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 th e only potentially actionabl e adverse employment
action Alvarado suffered in retaliation for his f iling of an Internal Review form was his 2012 written warning for the incidents between him an d Daniel and between him and Josh Gonzales, a Hispanic store manager at Jeffrey. Alvarado , 149 F. Supp. 3d at 498; see generally Millea v.4 Metro-North R.R. Co. , 658 F.3d 154, 164-65 (2d Cir. 2011) (sugge sting 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 dispar ate treatment between hi mself and Daniel, his alleged comparator who did not receive a writte n 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 Dani el differ) rather than attributed to his behavior (in which he and Daniel, Alvarado co ntends, do not differ).

The record lacks sufficient support for Alva rado’s argument under the but-for causation
standard of Section 1981 and NYS HRL. Alvarado points to numerous instances of small acts of insubordination by Daniel, but he do es not point to any evidence th at would suggest any of these instances involved shouting or a ggression towards a manager on th e salesfloor comparable to
Alvarado’s incident with Gonzales. The most simila r instance, which is Daniel’s interaction with Cara Smyth, Jeffrey’s customer service manage r, involved Daniel muttering something under her breath about Smyth while on the sa lesfloor 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, di smissive[,] and insubordinate” towards Gonzales during their al tercation 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 w ith respect to Alvarado’ s Section 1981 and NYSHRL
retaliation claims.

When an individual has failed to estab lish 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). Accordi ngly, we affirm the decision of the district court with respect to Al varado’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 employ ees” 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 j udgment 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 stan dard for proving a NYCHRL hostile work
environment claim is lower than the sta ndard 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 triv iality as a matter of la w. Daniel’s one racebased comment against Alvarado is still not enough to re nder all of her aggressive behavior (to which some of her straight, Af rican-American colleagues were also subjected) race-based, and5 Lawrence’s and Dalrymple’s comments remain merely petty even if they are hurtful. Accordingly, we affirm the decision of the dist rict court with respect to Alvarado’s NYCHRL
hostile work environment claim.

In order to succeed on a NYCHRL retaliation cl aim, 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 lik ely to deter a person from engaging in such action.” Mihalik , 715 F.3d at 112 (internal citation omitted). “[N]o cha llenged conduct may be deemed nonretaliatory unless a jury could not reasonabl y 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-de pendent, and of the fact that a jury is generally best suited to eval uate 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. 201 5) (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 ac tion, we hold that the question of whether Daniel was a sufficiently close compar ator to Alvarado such that their disparate
treatment would show Alvarado’s 2012 written reprimand was pret extual is more appropriately one for a fact finder. In reviewing the realit ies 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 instan ce, there is no evidence in the record that any employees received a written reprimand following the altercation betwee n Alvarado, Daniel, and José Bravo, a Hispanic colleag ue, 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 mi nor insubordinations and other
combative behavior vis-à-vis her co-workers fo r which she had received few written reprimands, Alvarado immediately received a written reprima nd for his single act of insubordination towards Gonzales. Viewing the facts pled in the lig ht 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 ther e 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 dist rict 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 inci dent 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 wa s not entitled to an adverse in ference against Defendants.6 We have considered the remainder of Alva rado’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