15-3479 

Szwalla v. Time Warner Cable

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 

1st day of December, two thousand sixteen. 

PRESENT: 

DENNIS JACOBS,

ROSEMARY S. POOLER, 

Circuit Judges,

GEOFFREY W. CRAWFORD,

District Judge. 

_____________________________________ 

AIMEE SZWALLA, 

Plaintiff-Appellant, 

v. 15-3479 

TIME WARNER CABLE LLC, TIME 

WARNER ENTERTANMENT COMPANY, 

L.P., 

Defendants-Appellees. 

_____________________________________ 

FOR PLAINTIFF-APPELLANT: Aimee Szwalla, pro se, Vestal, 

New York. 

 

 Judge Geoffrey W. Crawford of the United States District Court 

for the District of Vermont, sitting by designation. 
FOR DEFENDANTS–APPELLEES: Jonathan B. Fellows, Bond, 

Schoeneck, & King, Syracuse, New 

York. 

 

 Suzanne O. Galbato, Bond, 

Schoeneck, & King, Syracuse, New 

York. 

Appeal from a judgment of the United States District Court 

for the Northern District of New York (D’Agostino, J.). 

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

DECREED that the judgment of the district court is AFFIRMED. 

Appellant Aimee Szwalla, proceeding pro se, appeals from 

a judgment granting summary judgment in favor of Time Warner 

Cable (“TWC”) on her claims of hostile work environment and 

retaliation in violation of Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § 2000e, et seq. Szwalla alleged that two 

supervisors sexually harassed her and that TWC retaliated 

against her when she reported the harassment. We assume the 

parties’ familiarity with the underlying facts, the procedural 

history of the case, and the issues on appeal. 

We review de novo a district court’s grant of summary 

judgment, with the view that summary judgment is appropriate 

only “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as 

a matter of law.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 

2012) (internal quotation marks omitted). Upon review, we 

conclude that the district court properly granted summary 

judgment to TWC. 

The district court properly dismissed as time-barred 

Szwalla’s hostile work environment claim based on comments made 

by her supervisor Paul Noyd in 2009. In a jurisdiction with 

a state fair employment agency, a plaintiff’s discrimination 

claim is time-barred if it is not filed with the Equal Employment 

Opportunity Commission within 300 days of the alleged 

discriminatory act or within 30 days of the termination of the 

state proceedings. See 42 U.S.C. § 2000e-5(e)(1); Ford v. 

Bernard Fineson Dev. Ctr., 81 F.3d 304, 307 (2d Cir. 1996). 

Szwalla’s 2011 administrative complaint was untimely as to 

Noyd’s conduct and did not assert a continuing violation theory. 

See Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001) 

(holding that a plaintiff may not rely on a continuing violation 

theory if she has not asserted it in her administrative 

proceedings). 
3 

 The district court also properly determined that TWC had 

successfully raised an affirmative defense to Szwalla’s hostile 

work environment claim based on her second supervisor’s 

conduct. An employer may avoid liability for a supervisor’s 

sexual harassment where it shows that (1) “the employer 

exercised reasonable care to prevent and correct promptly any 

sexually harassing behavior” and (2) “the plaintiff employee 

unreasonably failed to take advantage of any preventive or 

corrective opportunities provided by the employer or to avoid 

harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 

807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 

(1998). As the district court determined, TWC satisfied the 

first prong of the Faragher/Ellerth defense because the summary 

judgment evidence showed that it had anti-harassment policies 

in place that were widely distributed and allowed for employees 

to bypass supervisors when filing complaints. See Faragher, 

524 U.S. at 808. The summary judgment evidence also showed that 

TWC exercised reasonable care to correct the sexually harassing 

behavior when it promptly responded to Szwalla’s complaint by 

suspending and terminating her second supervisor. The second 

prong of the defense was satisfied because the evidence showed 

that Szwalla did not report her supervisor’s conduct for a year 

and she did not demonstrate that she had a credible fear that 

a complaint would be ignored or would result in an adverse 

employment action. See Caridad v. Metro-North Commuter R.R., 

191 F.3d 283, 295 (2d Cir. 1999), overruled on other grounds 

by In re IPO, 471 F.3d 24, 42 (2d Cir. 2006). 

TWC was also entitled to judgment as a matter of law on 

Szwalla’s retaliation claims. In order to state a prima facie 

case of retaliation, a plaintiff must show that (1) she engaged 

in protected activity; (2) the defendant knew of this protected 

activity; (3) she suffered an adverse employment action; and 

(4) a causal connection exists between the protected activity 

and the adverse employment action. Littlejohn v. City of New 

York, 795 F.3d 297, 315-16 (2d Cir. 2015) (citing Hicks v. 

Baines, 593 F.3d 159, 164 (2d Cir. 2010)). Should the plaintiff 

present a prima facie case, the burden shifts to the defendant 

to articulate some legitimate nondiscriminatory reason for the 

action. Chen v. City Univ. of New York, 805 F.3d 59, 70 (2d 

Cir. 2015). Where a defendant presents legitimate 

nondiscriminatory reasons for adverse employment actions, a 

plaintiff may prevail only if she can show that her 
4 

participation in the protected activity was the “but for” cause 

for the adverse employment action. Id. 

The district court correctly concluded that the majority 

of TWC’s actions alleged by Szwalla did not constitute adverse 

employment actions. See Galabya v. New York City Bd. Of Educ., 

202 F.3d 636, 640 (2d Cir. 2000) (An adverse employment action 

is an act that gives rise to “a materially adverse change in 

the terms and conditions of employment” or a change in working 

conditions that is “more disruptive than a mere inconvenience 

or an alteration of job responsibilities.”). The district 

court did not address whether Szwalla’s transfer from account 

executive to a position in TWC’s call center or her ultimate 

termination were adverse employment actions. However, we may 

affirm a district court’s order on any grounds supported in the 

record. Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 

(2d Cir. 2006). Even assuming that Szwalla’s transfer and 

termination were adverse employment actions and that she stated 

a prima facie claim of retaliation, her claim must fail because 

TWC provided legitimate nondiscriminatory reasons for its 

actions and because Szwalla cannot show that her participation 

in protected activity was the “but for” cause of her transfer 

and termination. See Chen, 805 F.3d at 70. 

We have considered all of Szwalla’s arguments and find them 

to be without merit. Accordingly, we AFFIRM the judgment of 

the district court. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk