12 -48 96 -cv

Mende z-Noue l v . G ucci Ame rica, I nc. UNI TED STATES COURT OF A PPEAL S FOR THE SECOND CI RCUI T
SUMMAR

Y ORDER
RULING S BY SUM M ARY O RDER DO NOT HA VE PRECEDENT IAL EFFECT. CITAT ION TO A SUM M ARY O RDER FILED ON O R AFTER JA NUARY 1 , 2 00 7, IS PERM ITT ED AND IS GOVERNED BY FEDERAL RULE OF APP ELL ATE PROCEDURE 32 .1 AND THIS CO URT’S LOCAL RULE 32 .1. 1. WHEN CITING

A SUM M ARY O RDER IN A DO CUM ENT FILE D WITH THIS COUR T, A PAR TY M UST CITE EITHER THE FEDERAL APP ENDIX OR AN ELE CTRONIC DATABA SE (WITH THE NOTATION “SUM M ARY O RDER”). A P ARTY CITING A SUM M ARY O RDER M UST SERVE A CO PY OF IT ON ANY P ARTY NOT REPRESENTE D B Y COU NSEL.

At a stated Te rm of the United States Court of A ppeals for the Second Circuit, held at the Thurg ood Marsha ll United States Courthouse, 40 Foley Square, in the City

of Ne w York on the 11 day of Oc tober, two thousand thirtee n. t h
Present: ROSEMARY S. P OOL ER,

GERARD E. LYNCH, RAYMOND J. L OHI ER, J R.,

Circuit Judges

.

_____________________________________________________ ADOL FO MEN DEZ -NOU EL , Plaintif f-Appellant ,

-v- 12-4896-c v GUCCIAMERI CA, I

NC., Defendant-

Appellee

.

_____________________________________________________ Appea ringfor Appe llant: Rick Ostrove, L eeds B rown L aw, P.C., Carle Place , N.Y. Appea ringfor Appe llee: Michele A . Coy ne (K ristina C. Hammond, on the brief ), Ka uff, McGuire & Ma

rg olis L L P, New Yor

k, N.Y. Appea l from the United States District Court for the Southern District of Ne w York (Eng elmayer, J. ).
ON CONSIDERATION WHE REOF, IT IS HEREB Y ORDERED, ADJUD GED, AND DECREED that the judg ment of said District Court be a nd it hereby

is AF F IRMED

.Plaintiff-appe llant Adolfo Mendez-Noue l (“Mende z”) appe als from the N ovember 8, 2012 decision and or der of the United States District Court for the Southern District of Ne w York (E ng elmayer, J. ) g rantingsummary judgme nt in favor of

defe ndant-a

ppellee Gucci Americ a, Inc. (“ Gucc i”) on Mende z’s suitalleg ing a sex-based hostile work e nvironment and reta liation under Title VI Iof the Civil Ri g hts Act of 1964, 42 U.S.C. § 2000e et seq. , and the New Y ork State Human Rig hts L aw ( “NYSHRL ”), N .Y. Exec. L aw § 290 et seq. We assume the par ties’ familiarity

with the underly

ing f acts, proc edura l history , and spec ification of issues for r eview.
I. Hostile Work Envi ronm ent “[F]or sexual harassment to be a ctionable, it must be sufficie ntly sever e or pe rvasive,” Meritor Sav. Bank

, FSB v. Vinson , 477 U.S. 57, 67 (1986)—both subjectively and objec tively , see, e .g., Harris v. Forklift Sys., 510 U.S. 17, 21–22 (1993)—“to a lter the c onditions of [ the victim’s] employ

ment and cr eate an abusive workingenvironment,” Meritor, 477 U.S. at 67 (alter ation in orig inal) (inter nal quotation marks omitted). “And, of cour se, the plaintiff must establish that the hostile or abusive tre atment was be cause of his or her sex.” Redd v . N. Y

. State Div. of Parole , 678 F.3d 166, 175 ( 2d Cir. 2012). To establish the “se vere or per vasive” element of

a hostile work e nvironment claim, a plaintiff does not nee d to show that his “hostile workingenvironment wa s both severe and perva sive; only

that it was sufficie ntly

sever e or sufficie ntly

perva sive, or a suf

ficient combination of these e lements, to have a ltered [his] workingconditions.” Pucino v. Ve rizon W ireless Commc’ns, Inc., 618 F.3d 112, 119 ( 2d Cir. 2010). It was not err or for the district court to conclude that here , considering“all the c ircumstance s,” Harris , 510 U.S. at 23, the episodes complained of

wer e “simply

too episodic, insufficiently serious, and . . . insuff

iciently tied to his g ender or sexual orientation, to have materially altere d the conditions of [Mendez’s] employ ment.” “Common sense, and a

n appropr iate sensitivity

to social context, will enable courts and juries to distinguish betwee n simple teasingor roughhousing a mong me mbers of the same sex, and conduc t which a r easona ble per son in the plaintiff’s position would find severe ly hostile or abusive.” Oncale v . Sundowner Offshore Servs., I nc. , 523 U.S. 75 , 82 (1998). Vie w in the light most favora

ble to Mendez, the re cord indicates two instances of touching , the more significant beingan incident in which Me ndez’s supervisor touche d his lower bac k for f our to five se conds. There was a lso workplace banter about a supe rvisor’s sexual orientation and nightlife, and a single occa sion where a super visor told Mendez he was g ay but “[y ]ou j ust don’t know it.” Take n toge ther, the a lleg ed conduc t does not rise to the leve l of a hostile work e nvironment. See Redd, 678 F.3d at 177 (discussing “ [t ]he line betwee n complaints that are easily susceptible to dismiss al as a

matter of la

w and those that are not,” with “[c]asual contac t . . . normally

. . . unlikely to cre ate a

hostile environment in the absence of aggravating circumstance s such as continued contac t after an objection ,” and “ [d] irec t contact with an intimate body part constitut[ ing] one of the most severe forms of se x ual har assment.” ( Emphasis in origina l) (interna l citations and quotation marks omitted). Thus, we a ffirm the district c ourt’s g rant of summary judgme nt on Mendez’s hostile work environme nt claim.

2II. Ret aliation

On Mende z’s retaliation claim, the district cour t gr anted summary

judgme nt on the basis that the re cord c ontained only a “w eak issue of

fac t” as to pre textand the e vidence of a leg itimate, nondiscriminatory rea son for Mende z’s termination was abunda nt. This is consist ent with Ree ves v . Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 148 (2000), which r easone d that “an e mploy er w ould be entitled to judgme nt as a matter of law if the rec ord conc lusively reve aled some other, nondiscr iminatory rea son for the e mploy er’ s decision, or if the pla intiff cre ated only a we ak issue of f

act a s to whether the employ er' s rea son was untrue and ther e wa s abundant a nd uncontrove rted indepe ndent evidenc e that no discrimination had oc curr ed.”
I t is undisput ed that Guc ci beg an an inve stigation after one of Mende z’s colleagues expressed conc erns a

bout his behavior to Gucc i’s Human Relations depa rtment. That investigation revea led that other e mploy ees w ere disturbed by Mendez’s see mingly

unstable and distracted a ctions, providing Gucci with an “ abundant” independe nt basis for ter minating Mendez. Fur

ther, a lthough Me ndez argues that the investig ation into the complaints lodge d ag ainst him was in and of itself pre textual and that the c omplaints were untr ue, the r ecor d shows that Gucc i’s HR depar

tment took the investigation seriously , with copious notes memorializing conver sations with other employ ees. Me ndez has not put forwa rd evide nce that sugg ests unresolved que stions of material fa ct with respe ct to his termination and Gucc i’s motive. See McPhe rson v. N. Y

. C. Dep’t of Educ. , 457 F.3d 211, 216 ( 2d Cir. 2006) (“I n a discrimination case . . . we a

re de cidedly

not interested in the truth of the alleg ations ag ainst the plaintiff. We are interested in what ‘ motivated the employ er,’ the fa ctual validity of the unde rlying imputation ag ainst the employ ee is not at issue.” (interna l citation omitt ed)) . Thus, we a lso affirm the district court’s grant of summar y judgme nt as to Mendez’s re taliation claim.
Acc ording ly , the judg ment of the district cour t here by is AFF I RMED.

FOR THE COURT: Catherine O ’Ha g an Wolfe, Clerk

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