The Honorable Jed S. Rakoff, United States District Judge for the Southern District of *

New York, sitting by designation.

09-3183-cv

Fleming v. Maxmara USA, Inc.

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

Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 25 day th

of March, two thousand ten.

Present:

RALPH K. WINTER

ROBERT A. KATZMANN,

Circuit Judges,

JED S. RAKOFF,

District Judge.

*

________________________________________________

YVONNE FLEMING,

Plaintiff-Appellant,

v. No. 09-3183-cv

MAXMARA USA, INC., LUIGI CAROGGIO, JOHN GLEESON, 

Defendants-Appellees.

________________________________________________

For Plaintiff-Appellant: DENISE K. BONNAIG, Bonnaig & Associates, New York,

NY
-2-

For Defendants-Appellants: HOLLIS GONERKA BART (Chaya F. Weinberg-Brodt, Alyssa

N. Koerner, on the brief), Withers Bergman, LLP, New

York, NY

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

(Sifton, J.).

ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Yvonne Fleming appeals from a judgment of the United States

District Court for the Eastern District of New York (Sifton, J.) granting summary judgment to

Defendants-Appellees and dismissing Fleming’s discrimination and retaliation claims. Fleming

alleged that defendants discriminated against her on the basis of her race by terminating her and

by creating a hostile work environment, and retaliated by terminating her for complaining that

defendants treated American employees differently than Italian employees by terminating her. 

We assume the parties’ familiarity with the facts, procedural history, and scope of the issues

presented on appeal.

Both Fleming’s discrimination and retaliation claims related to her termination are

analyzed using the burden-shifting paradigm articulated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000); Reed v.

A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (applying to retaliation claims). To

establish a prima facie case of discrimination, a plaintiff must show that: (1) she is a member of

a protected class; (2) she is qualified for the position; (3) she suffered an adverse employment

action; and (4) circumstances surrounding that action give rise to an inference of discrimination. 

Collins v. N.Y. City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002). To establish a prima facie

case of Title VII retaliation, a plaintiff must show (1) participation in a protected activity known

to the defendant, (2) an employment action disadvantaging the plaintiff, and (3) a causal
-3-

connection between the protected activity and the adverse employment action. Id.

Fleming’s discriminatory termination claim fails because she cannot show the fourth

element of her prima facie case—that the circumstances surrounding her termination give rise to

an inference of discrimination. See Collins, 305 F.3d at 118. While a plaintiff may usually

satisfy this element by showing that she was replaced by someone not in her protected class, see

Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001), Fleming was

replaced by another black female, Lisa Derrick. Fleming argues that Derrick was hired to

disguise defendants’ discriminatory act, but Fleming fails to point to any admissible evidence to

support this assertion. Further, while Fleming points to cases concluding that where a plaintiff is

replaced with a member of her protected class after the filing of a discrimination charge might

suggest a cover-up, see, e.g., Howard v. Roadway Express, Inc., 726 F.2d 1529, 1534-35 (11th

Cir. 1984); Lee v. Conecuh County Bd. of Educ., 634 F.2d 959, 964 (5th Cir. 1981), here Derrick

was hired at the same time that Fleming was fired, before Fleming took any legal action against

defendants.

Fleming’s retaliatory termination claim fails because, even if she can show a prima facie

case of retaliation, defendants have put forth a legitimate, non-discriminatory reason for her

termination, and Fleming has not responded with facts sufficient to warrant a reasonable jury

finding by a preponderance of the evidence that “the legitimate reasons offered by the

defendant[s] were not [their] true reasons, but were a pretext for [retaliation].” Richardson v.

Comm’n on Human Rights & Opportunities, 532 F.3d 114, 125 n.11 (2d Cir. 2008). Defendants

state that Fleming was terminated because they perceived a need to upgrade her position, and

because of their perception that Fleming’s “inappropriate, insensitive, or otherwise

disproportionate conduct towards other employees had demonstrated . . . that she lacked the

judgment needed for the role.” Fleming contends that these reasons are pretextual because they
-4-

are false—she disputes that her behavior was ever inappropriate and asserts that by hiring

Derrick defendants did not upgrade her position. 

Fleming’s arguments do not demonstrate that MaxMara’s purported reason for

terminating her was pretextual. Her disagreement with defendants over whether her behavior

was inappropriate does not show that their stated reasons for terminating her were not their true

reasons. Fleming’s email to Haddock alone supports defendants’ assertion that she behaved

inappropriately and unprofessionally. Therefore, even if the facts are in dispute about the

inappropriateness of other incidents, she cannot demonstrate that defendants’ proffered reasons

for her termination were so unfounded that a reasonable jury could conclude that they “were not

the defendant[s’] true reasons, but rather a pretext.” Taitt v. Chem. Bank, 849 F.2d 775, 777 (2d

Cir. 1988). Nor does her disagreement with defendants’ assertion that they upgraded her position

by hiring Derrick establish pretext. Derrick, unlike Fleming, possessed a college degree, and,

more importantly, “it is not the function of a fact-finder to second-guess business decisions.” 

Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988); see also Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 259 (1981) (“The fact that a court may think that the employer

misjudged the qualifications of the applicants does not in itself expose him to Title VII

liability.”). Only where an employer’s business decision is so implausible as to call into question

its genuineness should this Court conclude that a reasonable trier of fact could find that it is

pretextual. See Dister, 859 F.2d at 1116. That is not the case here.

Further, while the temporal proximity between the meeting at which Fleming claims to

have complained of unequal treatment of American and Italian employees and her termination

may be sufficient to satisfy the third element of her prima facie case, it is insufficient on its own

to demonstrate that defendants’ legitimate, non-discriminatory explanation for her termination

was pretextual. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 770 (2d Cir. 1998)
-5-

(concluding that plaintiff’s facts were sufficient to warrant a finding of pretext where there was

other circumstantial evidence of pretext in addition to a strong temporal connection).

Fleming’s hostile work environment claim fails because she cannot demonstrate that her

“workplace [was] permeated with ‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of [her] employment and create an

abusive working environment.’” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)

(internal citation omitted). Fleming alleges that Gleeson made a racially harassing comment to

her early in her tenure at MaxMara and followed it by numerous incidents of unfair treatment. 

“[W]hether an environment is ‘hostile or abusive’ can be determined only by looking at all the

circumstances.” Id. at 23. “For racist comments, slurs, and jokes to constitute a hostile work

environment, there [generally] must be more than a few isolated incidents of racial enmity . . . .” 

Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal citation and quotation

marks omitted). However, “even a single episode of harassment, if severe enough, can establish

a hostile work environment.” Richardson v. N.Y. State Dep’t of Corr. Servs., 180 F.3d 426, 437

(2d Cir. 1999), abrogated on other grounds by Burlington N. Santa Fe Ry. Co. v. White, 548 U.S.

53 (2006).

Here, Fleming puts forth evidence of only one incident that is plainly motivated by

race—defendant Gleeson’s 2001 comment. Viewing the facts in the light most favorable to

Fleming and drawing all inferences in her favor, while this comment may be seen as severe, it is

isolated and, standing alone, is not the type of “intolerable alteration” of her working conditions

that substantially interferes with her ability to do her job. Mathirampuzha v. Potter, 548 F.3d 70,

79 (2d Cir. 2008). Instead, we have found a hostile work environment only where such a

racially-harassing comment is one of many racially-motivated comments. See Whidbee v.

Garzarelli Food Specialities, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (concluding that a similar
-6-

racially harassing comment sufficiently demonstrated a hostile work environment where it was

part of a “stream of racially offensive comments” including a “veritable barrage of racial

epithets”). Fleming does not allege any fact to connect this comment to her other allegations of

unfair treatment, which are not facially related to her race. Moreover, her other allegations are

generally quite minor—she alleges that defendants wrongly excluded her from meetings,

excessively criticized her work, refused to answer work-related questions, arbitrarily imposed

duties outside of her responsibilities, threw books, and sent rude emails to her. These incidents

do not support a finding of a hostile work environment that is pervasive or severe. See Harris,

510 U.S. at 21.

The fact that Fleming cannot connect these other incidents of unfair treatment to

Gleeson’s comment also dooms her claim under the New York City Human Rights Law. While

that law does not require the same severity or pervasiveness that federal law requires, see

Williams v. N.Y. City Housing Auth., 872 N.Y.S.2d 27, 31, 38 (App. Div. 1st Dept. 2009), it does

contain a three-year statute of limitations, see N.Y. City Admin. Code § 8-502(d). Gleeson’s

comment was made well outside of this statute of limitations, and Fleming does not provide

evidence of any racially-motivated acts within the three-year statute of limitations. 

We have considered the remainder of Fleming’s arguments and conclude that they lack

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK