14‐2870‐cv

Henvill v. Metro. Transp. Auth.

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 TO A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.   

1 At a stated term of the United States Court of Appeals for the Second

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 20 3 th day of April, two thousand fifteen.

4 

5 PRESENT: DENNIS JACOBS,

6 RAYMOND J. LOHIER, JR.,

7      Circuit Judges,

    FRANK P. GERACI, JR.,* 8 

9      District Judge.

10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

11 

12 WINSTON HENVILL,  

13 

14                  Plaintiff‐Appellant,

15 

16 v. No. 14‐2870‐cv

17 

18 METROPOLITAN TRANSPORTATION

19 AUTHORITY, JOHN D’AGOSTINO,

20 KATHLEEN FINNERAN, JOSEPH PUGLIESE,

21 STEVE GUARDINO, RICKY SMITH, KEVIN

22 KIERAN, ALEXANDER LINDSAY,

 

* Chief Judge Frank P. Geraci, Jr., of the United States District Court for the

Western District of New York, sitting by designation.
2 

1 CHRISOPHER NUTTER, and MICHAEL YASSO,

2 

3 Defendants‐Appellees.

4 

5 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

6 

7 FOR APPELLANT: ALAN E. WOLIN, Wolin & Wolin, Jericho, NY.

8 

9 FOR APPELLEES: GREGORY B. GILMORE, Gonzalez Saggio & Harlan

10 LLP, New York, NY.   11 

12 Appeal from judgments of the United States District Court for the

13 Southern District of New York (George B. Daniels, Judge).  

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

15 AND DECREED that the July 14, 2014 judgment of the District Court is

16 AFFIRMED and the October 10, 2014 judgment of the District Court is

17 AFFIRMED IN PART and VACATED AND REMANDED IN PART.

18 Winston Henvill appeals from the District Court’s July 14, 2014 judgment

19 granting the motion of the Metropolitan Transportation Authority (“MTA”) and

20 nine MTA employees to dismiss his employment discrimination complaint, and

21 from the District Court’s October 10, 2014 judgment denying Henvill’s request

22 for leave to amend the complaint.  We assume the parties’ familiarity with the

23 facts and record of the prior proceedings, to which we refer only as necessary to

24 explain our decision to affirm in part and vacate and remand in part.   

25 On appeal, Henvill makes no arguments regarding the District Court’s

26 grant of Defendants’ motion to dismiss.  Accordingly, he has abandoned any

27 challenge to that ruling.  See Jackler v. Byrne, 658 F.3d 225, 233 (2d Cir. 2011).   

28 As for Henvill’s request for leave to amend, which the District Court

29 denied on the ground that the proposed amended complaint (“PAC”) would not

30 survive a motion to dismiss, we affirm the ruling as to most of Henvill’s Title VII
3 

1 claims.  Henvill’s claims based on incidents that occurred between 2008 and

2 October 2010 are time‐barred, and the PAC fails plausibly to allege a “continuous

3 practice and policy of discrimination.”  Washington v. Cnty. of Rockland, 373

4 F.3d 310, 317 (2d Cir. 2004) (quotation marks omitted).  We also affirm the denial

5 of Henvill’s motion to amend his hostile work environment claims.  See Nat’l

6 R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002).  In addition, we agree

7 that the PAC fails to allege any facts making it plausible that the MTA’s denial of

8 training, the January 2012 notice of intent to discipline, or the threat of discipline

9 against Henvill created a “materially adverse change in the terms and conditions

10 of employment.”  Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)

11 (quotation marks omitted); see PAC ¶¶ 47, 53‐54.  Nor does the PAC plausibly

12 claim that the MTA, by verbally counseling Henvill and requiring him to go to

13 Internal Affairs and write two memoranda, acted in a way that “well might have

14 dissuaded a reasonable worker from making or supporting a charge of

15 discrimination.”  Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11,

16 25 (2d Cir. 2014) (quotation marks omitted); see PAC ¶¶ 48‐51.  Finally, the PAC

17 fails to allege sufficient facts giving rise to a plausible claim that the command

18 discipline issued by Sergeant Steve Guardino, the letter of instruction issued by

19 Captain Kevin Kieran, and the March 2012 disciplinary action prohibiting

20 Henvill from issuing summonses were because of Henvill’s race and color.  See

21 E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014); Brown v.

22 Daikin Am. Inc., 756 F.3d 219, 229 (2d Cir. 2014); PAC ¶¶ 44, 52.

23 However, the District Court erred in denying Henvill’s request for leave to

24 amend as it pertained to the race‐based discrimination claim regarding the

25 command discipline issued by Lieutenant Lee Dittrich and the retaliation claim

26 regarding the removal of Henvill’s summons‐issuing responsibilities.  See PAC
4 

1 ¶¶ 45‐46, 52.  The alleged effects of the command discipline plausibly constitute

2 a “material loss of benefits,” Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006)

3 (quotation marks omitted), and, allegedly, specific white officers who committed

4 overtime violations comparable to Henvill’s were not disciplined.  And the PAC

5 plausibly claims that shortly after Henvill filed his first charge with the EEOC,

6 the MTA stripped Henvill of a “material part of [his] duties and responsibilities”

7 as a transit police officer by prohibiting him from issuing summonses, PAC ¶ 52,

8 a change in duties that may well have been “materially adverse to a reasonable

9 employee,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).

10 We have considered all remaining arguments and conclude that they are

11 without merit.  For the foregoing reasons, we AFFIRM the District Court’s July

12 14, 2014 judgment, AFFIRM in part and VACATE in part the District Court’s

13 October 10, 2014 judgment, and REMAND for further proceedings consistent

14 with this order.   

15 

16       FOR THE COURT:

17       Catherine O=Hagan Wolfe, Clerk of Court